Commentary: Security Contracting and the Dilemma of Defining an Inherently Governmental Function

Later in March, the Obama administration plans [1] to release new guidance to federal agencies on which jobs the government can and cannot outsource to the private sector. The federal government's latest effort to better define what qualifies as an inherently governmental function should theoretically have significant consequences for reconstruction efforts in Iraq and Afghanistan, specifically regarding security contracting. However, change is unlikely.

The Federal Acquisition Regulation, the body of rules that regulate government contracting, defines an inherently governmental function as one "that is so intimately related to the public interest as to mandate performance by Government employees." Application of the definition, however, is extremely complicated.

Introduced in 1992 and revised in 1998, the inherently governmental standards describe five broad areas where the government should not outsource its work. The law states that any function is inherently governmental if it involves "the interpretation and execution of laws of the [U.S.] so as to:

• "Bind the [U.S.] to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;
• "Determine, protect, and advance [U.S.] economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise;
• "Significantly affect the life, liberty, or property of private persons;
• "Commission, appoint, direct, or control officers or employees of the [U.S.]; or
• "Exert ultimate control over the acquisition, use, or disposition of the property, real or personal, tangible or intangible, of the [U.S.], including the collection, control, or disbursement of Federal funds."

The guidelines also describe what falls outside of the inherently governmental category. In addition to the general tasks of "gathering information for or providing advice, opinions, recommendations, or ideas to Government officials," the standards specifically delineate tasks such as "building security, mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management operations, or other routine electrical or mechanical services."

These guidelines would seem to ban many of the jobs the federal government has controversially outsourced in Iraq and Afghanistan, including security detail work, military and police training, interrogation, and intelligence. A loophole in the standards that prevents them from applying to overseas conflicts, however, has allowed contingency contracting to become a morass of private military and security contractors handling everything from reconstruction to intelligence. Even if the standards were applicable, though, they would produce a "squishy" middle where one agency's inherently governmental task is another's viable option for outsourcing, just as they do domestically.

Recent reports [1] have suggested the Obama administration intends to improve upon the current problematic guidelines by breaking down inherently governmental functions into three categories: those that are inherently governmental, those that are closely associated with inherently governmental, and those that are critical in nature. The reports also note that the White House will provide an expanded list of tasks that fall within the inherently governmental framework. These improvements, however, will likely not apply to contingency contracting, as the Office of Management and Budget (OMB) will probably not scrap the current loophole regarding overseas conflicts.

The government created the loophole to prevent the vast array of contracting bureaucracies from hindering the Department of Defense while utilizing the private sector to carry out military actions. The length and complexity of the wars in Iraq and Afghanistan, however, will necessitate for the foreseeable future a continued reliance on contractors for security and reconstruction efforts. In the case of reconstruction, the government should continue to improve oversight and hold contractors accountable for their work. But there are some functions performed in overseas wars that the government must make a determined effort to move away from outsourcing entirely.

Companion bills recently reintroduced [2] by Rep. Jan Schakowsky (D-IL) and Sen. Bernie Sanders (I-VT), entitled Stop Outsourcing Security, would address this issue. The legislation seeks to delineate "mission critical or emergency essential functions" performed in a war zone. The legislation defines "mission critical or emergency essential functions" as "activities for which continued performance is considered essential to support combat systems and operational activities," or "activities whose delay, absence, or failure of performance would significantly affect the broader success or failure of a military operation."

The bill's most valuable component is the list of specific tasks that the government would not be able to outsource, including "the provision of protective services; the provision of security advice and planning; military and police training; repair and maintenance for weapons systems; prison administration; interrogation; and intelligence." Without better guidance from the federal government, or even the determination to apply existing standards to overseas contingency contracting, the only option seems to be legislative.

Some analysts argue [3] that the current mix of security contractors in overseas environments is here to stay and that any attempts to better define an inherently governmental function ignores "the far greater number of people and money in logistics or reconstruction efforts" compared to "the relatively minor number of security contractors." This seems to be a false dichotomy at best. The former demands increased oversight where the latter calls for a better attempt by government to control its resources. Neither of these has to be achieved at the expense of the other.

Image in teaser by flickr user munir [4], used under a Creative Commons license.