The following comments are submitted on behalf of IPOA, the Association of the Stability Operations Industry in response to the Office of Federal Procurement Policy’s invitation to provide comments in the formulation of a final policy letter regarding circumstances when work must be reserved for performance by Federal government employees. When finalized, this letter will fulfill the President’s March 4, 2009 direction to the Office of Management and Budget to clarify when government outsourcing of services is, and is not, appropriate consistent with section 321 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Public Law 110-417).
IPOA is a trade association with the mission of promoting high operational and ethical standards of firms active in the stability and support operations industry; engaging in a constructive dialogue with policy-makers about the positive contribution of these firms to the enhancement of international stability, development, and human security; and informing the concerned public about the industry’s activities and roles. IPOA was founded in 2001 to reflect a clear recognition that the private sector can play a larger, more cost-effective role in fundamentally improving stability and development operations worldwide. With more than 60 members, IPOA is the leading voice of the stability operations industry. Our members conduct a wide variety of contracting operations in reconstruction, security, and logistics and will be directly impacted by implementation of the final policy letter to be issued by the Office of Federal Procurement Policy. Therefore, IPOA offers several substantive comments – compiled from our professional staff, IPOA members, and outside experts – with a view toward providing constructive insights that address many of the questions raised in the notice of proposed policy letter and that, ultimately, improve the final version. As the process moves forward, IPOA would be delighted to represent the industry to aid further understanding, progress, and collaboration between the industry and government.
While Association of the Stability Operations Industry members are generally supportive of key elements of the proposed policy letter, they also offer the following comments and concerns, including responses to questions posed in section D of the Federal Register notice.
• IPOA supports the decision to adopt the definition of “inherently governmental function” as outlined in the Federal Activities Inventory Reform (FAIR) Act (Public Law 105-270). The letter properly outlines the significant aspects that render a function “inherently governmental” and, for functions not explicitly deemed “inherently governmental” in this letter or in statute, provides appropriate flexibility for agencies to determine, on a case-by-case basis, the nature of the work and the level of discretion associated with its performance. In such a way, agencies will have the ability to decide how best to meet mission requirements.
• That said, this policy letter also attempts to define “critical functions” and those functions “closely associated with the performance of inherently governmental functions” with the same certitude brought to defining “inherently governmental functions”. However, in practical terms, the letter does not truly differentiate “associated” functions as a separate class of functions that merit their own category . The letter loosely describes a function “closely associated with the performance of inherently governmental functions” as one that may impinge upon federal officials’ performance of an inherently governmental function (draft policy letter, section 5-2a(a)) and that contractor performance may cause the agency to lack sufficient internal expertise to maintain control of its mission and operations (draft policy letter, section 5-2a(b)(1). When viewed in concert with the FAIR Act’s definition of an “inherently governmental function” and with the letter’s own definition of a “critical function” (i.e., one which allows federal employees to maintain control of an agency’s mission and operations (draft policy letter, section 5-2b)), it becomes clear that there is no utility in calling out a separate category for associated functions and that, by doing so, the draft policy letter introduces an unnecessary bureaucratic construct and possible confusion. Instead, it should be sufficient to capture those “associated” ideas within the definition of a “critical function”. (Note: This position
also answers question D.3.c., Solicitation of Public Comment, of the Federal Register announcement.)
• In addition, Association of the Stability Operations Industry encourages the Office of Management and Budget’s Office of Federal Procurement Policy to retain the necessary flexibility within the definition of a “critical function” to allow the use of private contractors, as appropriate. The draft policy letter provides a useful definition of “sufficient internal capability” (draft policy letter, section 5-2b.((a)(1)) and allows agencies to make related determinations on a case-by-case basis – an efficient and effective construct, which has been validated by developments in overseas contingency operations over the last few years. For example federal departments and agencies have retained a core capability in training foreign security forces, but they have also hired contractors to supplement that capability when cost effective and appropriate and exercised management and control over those efforts.
• To that end (and in answer to question D.3.e., Solicitation of Public Comment, of the Federal Register announcement), one can recognize that such case-by-case determinations of a “critical function” would be best made at the component or individual agency level. Departments are far better-suited for high-level, strategic determinations, but in working through the number of “critical functions”, those determinations may either (1) impose overarching requirements that are ill-fitting to many cases and thus hinder operations, or (2) reflect a mere rubber-stamping of a component’s recommendations and thus create additional, time-consuming bureaucracy. [I’m not 100% clear on this point, I think you need to explain it in a little more detail]
• The current draft policy letter also requires agencies to undertake “strategic human capital planning” that calls for sufficient, qualified agency personnel to manage and oversee contractor performance. IPOA is supportive of this effort to develop and sustain a federal acquisition workforce and cadre of contracting personnel who can apply consistent management of federal contracts. It may prove useful for the guidance to address circumstances in which it would be appropriate for a federal agency to contract – on a temporary basis – for the performance of work normally reserved for federal employees (in answer to question 6.c., Solicitation of Public Comment, of the Federal Register announcement). In particular “surge” circumstances, where sufficient governmental capacity does not yet exist, such guidance would allow officials to find an essential, albeit short-term solution to meet demand while creating the governmental capacity without mission degradation.
• Finally, the Solicitation of Public Comment poses several questions regarding the policy letter’s scope of coverage (specifically, sections D.7.a. and D.7.b. of the Federal Register announcement). IPOA members note that the draft policy letter includes specificity, where appropriate, and that calling out advisory and assistance services and personal services contracting would create an unnecessary, possibly confusing differentiation between these and other types of contracts.
IPOA appreciates the opportunity to offer public comment on this proposed policy letter. We look forward to issuance of the final letter and remain available if you require additional information.