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FAR 7.503 inherently governmental includes drafting responses to IG audits?


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FAR 7.503 prohibits an agency from having a contractor "draft" the response to IG audits.  So the contractor cannot even "draft" the response where a federal employee reviews the contractor's deliverable and makes the final decisions on the finalization of the response to the IG audit.  Does anyone have a different interpretation of FAR 7.503?

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Within DoD, DFARS 207.503(e) calls for using DoD Instruction 1100.22 in determining whether any of the functions to be performed by a contract are inherently governmental.  DoD Instruction 1100.22, "Policy and Procedures for Determining Workforce Mix," April 12, 2010, Encl. 4, para 4b(2), lumps "manpower that has been delegated authority to" draft agency responses to audit reports as properly coded "E" (DoD Civilian Authority, Direction, and Control).  However--and here is the important part--it also states, "However, contractors may provide background information to assist governmental personnel with these activities."

I get that contracting has to have some basic familiarity with all kinds of different functional areas, but (at least within the DoD) "inherently governmental functions" is first and foremost in the Manpower swim lane.  See FAR 7.503(e) & DoDI 1100.22, Encl. 2, para 4c.

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Even outside of DoD and the cited DoDI, and considering only FAR 7.503(c)(20), contractors may provide background information to assist governmental personnel with these activities.  But somewhere, there is a line between providing background information and drafting responses.  

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FAR Subpart 7.5 was added with FAR Case 92-051, which became a final rule with FAC 90-37.  The rule was intended "to implement the Office of Federal Procurement Policy (OFPP) Policy Letter 92-1, Inherently Governmental Functions."  61 Fed. Reg. 2627 (Jan. 26, 1996).

Appendix A to OFFP Policy Letter 92-1 begins by pointing out, "With respect to the actual drafting of Congressional testimony, of responses to Congressional correspondence, and of agency responses to audit reports from the Inspector General, the General Accounting Office [now Government Accountability Office], or other Federal audit entity, see special provisions in subsection 6(c) of the text of the policy letter."

In other words, the letter recognizes the normal analysis you would go through in determining whether something is inherently governmental does not necessarily apply here.  Subsection 6(c) begins by describing the normal analysis but then ends by pointing out why drafting these responses are treated differently:

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(c) Drafting of congressional testimony, responses to congressional correspondence, and agency responses to audit reports from an Inspector General, the General Accounting Office, or other Federal audit entity. While the approval of a Government document is an inherently governmental function, its drafting is not necessarily such a function. Accordingly, in most situations the drafting of a document, or portions thereof, may be contracted, and the agency should review and revise the draft document, to the extent necessary, to ensure that the final document expresses the agency's views and advances the public interest. However, even though the drafting function is not necessarily an inherently governmental function, it may be inappropriate, for various reasons, for a private party to draft a document in particular circumstances. Because of the appearance of private influence with respect to documents that are prepared for Congress or for law enforcement or oversight agencies and that may be particularly sensitive, contractors are not to be used for the drafting of congressional testimony; responses to congressional correspondence; or agency responses to audit reports from an Inspector General, the General Accounting Office, or other Federal audit entity.

(emphasis added).

While OFPP Policy Letter 92-1 has been superseded, I didn't find anything in what followed that rejected the above quote.  As the language treating this function as inherently governmental has remained, the above language seems persuasive authority. If nothing else, it is a trip down memory lane.

When the final version of Office of Federal Procurement Policy (OFPP) Policy Letter 92-1 was published in on 30 September 1992 at 57 Fed. Reg. 45096, it was accompanied by comments and responses.  One read as follows:

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25. Drafting of Congressional testimony, responses to Congressional correspondence, and agency responses to audit reports from an Inspector General, the General Accounting Office, or other Federal audit entity. Two commenters questioned whether contractors should be able to draft Congressional testimony, subject to ultimate agency approval. Approval is a key power reserved to any official and we by no means agree that officials do or will approve contractor work in a perfunctory manner. We have nonetheless reexamined this issue and, because of the importance of Congressional testimony and correspondence and of agency responses to audit reports, we are now deciding, as a matter of policy, that these documents should not be drafted by contractors. We have thus added a new subsection (c) to the body of the policy letter to this effect. We deleted the relative portions of appendix A because we do not believe that drafting documents per se is an inherently governmental function and failing to exercise sufficient oversight with respect to drafting of such documents does not transform the underlying function into an inherently governmental function, as noted in subsection 21(a), above. Contractor reports, conclusions, summaries, analyses, and other work products may, of course, still be quoted or otherwise referenced in Congressional testimony, correspondence, responses to audit reports, or set out in such things as attachments, appendices, or enclosures thereto.

57 Fed. Reg. at 45099.

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6 hours ago, Jacques said:

While OFPP Policy Letter 92-1 has been superseded, I didn't find anything in what followed that rejected the above quote. 

Jacques - Using Policy Letter 92-1 is inappropriate in my view. 

Any conclusion reached by the OP on whether the "IG audit" drafting effort is inherently governmental should be based on conclusions reached in a full read of the link I provided with regard to Policy Letter 11-01 which now stands as inherently governmental guidance.   I say this noting that I have not read the full text explicitly but in my quick read it is clear OFPP addressed what was in previous guidance while not specifically referencing 92-1 and what was and is in the FAR regarding the inherently governmental. The finer points of 11-01 are what the OP should consider knowing the full facts of the instant procurement anticipated.  I do not disagree with your general premise that there may be leeway that even extended to Policy Letter 11-01 if one were to dig into it but using anything other than 11-01 to draw conclusions on what is allowed is not appropriate and in my read of 11-01 OFPP seems to make that point strongly.

 

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On 11/1/2019 at 5:08 PM, C Culham said:

Jacques - Using Policy Letter 92-1 is inappropriate in my view. 

Any conclusion reached by the OP on whether the "IG audit" drafting effort is inherently governmental should be based on conclusions reached in a full read of the link I provided with regard to Policy Letter 11-01 which now stands as inherently governmental guidance.   I say this noting that I have not read the full text explicitly but in my quick read it is clear OFPP addressed what was in previous guidance while not specifically referencing 92-1 and what was and is in the FAR regarding the inherently governmental. The finer points of 11-01 are what the OP should consider knowing the full facts of the instant procurement anticipated.  I do not disagree with your general premise that there may be leeway that even extended to Policy Letter 11-01 if one were to dig into it but using anything other than 11-01 to draw conclusions on what is allowed is not appropriate and in my read of 11-01 OFPP seems to make that point strongly.

 

To each their own.  You write Policy Letter 11-01 "now stands as inherently governmental guidance."  I didn't find anything that made Policy Letter 11-01 mandatory for contracting officers.  In fact, your link states:

Quote

OFPP will work with the Federal Acquisition Regulatory Council, the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council to develop and implement appropriate changes to the FAR to implement this policy letter.

76 Fed. Reg. 56227, 56228 (Sept. 12, 2011).  I thought this was going to be FAR Case 2012-001, but I don't recall it ever becoming a final rule.  It seems to me Policy Letter 92-1 has a stronger connection to FAR 7.503(c)(20) than Policy Letter 11-01 does, as the language in the FAR is actually based on 92-1.

In any case, I didn't find Policy Letter 11-01 particularly instructive as to the drafting question, and, as I suggested in my earlier post, I didn't see anything, either in the FAR or elsewhere, that suggests the REASON this particular inherently governmental function at FAR 7.503(c)(20) reads the way it does has changed since Policy Letter 92-1 or FAC 90-37.  If you don't find the trip down memory lane to be persuasive authority, though, I certainly understand.  That said, your suggestion it is "not appropriate" to use "anything other than 11-01 to draw conclusions on what is allowed" seems inconsistent with the very document you cite, when it points out it intends to "preserve a long-standing list of examples set out in the FAR of the most common inherently governmental functions."  76 Fed. Reg. at 56228 (emphasis added).

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18 hours ago, Jacques said:

I didn't find anything that made Policy Letter 11-01 mandatory for contracting officers.

There is no language in 11-01 that provides that it either superseded or rescinded 92-1.  Simply 92-1 just went away or in my terms no longer exists.  11-01 is now what exists as guidance and provides at paragraph numbered 5. that “ Implementation guidelines and responsibilities. Agencies shall use the guidelines below to determine: (1)whether their requirements involve the performance of inherently governmental functions, functions closely associated with inherently governmental functions, or critical functions;... "(emphasis added)  I am surprised that based on this imperative that you believe 11-01 is not mandatory in making a determination of inherently governmentalFurther your reference to "contracting officers" is misplaced.   FAR 7.503(e) is explicit that the agency head or designated requirements official shall make the determination of inherently governmental or not. 

 

 

18 hours ago, Jacques said:

76 Fed. Reg. 56227, 56228 (Sept. 12, 2011).  I thought this was going to be FAR Case 2012-001, but I don't recall it ever becoming a final rule.  It seems to me Policy Letter 92-1 has a stronger connection to FAR 7.503(c)(20) than Policy Letter 11-01 does, as the language in the FAR is actually based on 92-1.

 

No it is not based on 92-1.   It is based on 11-01 the intent of which was to as you note "preserve" the list of examples in the FAR.   92-1 can't and doesn't because it does not exist.  Sure 92-1 might of started the ball rolling but so what.  Or in other words 11-01 could have easily not preserved the list.

 

18 hours ago, Jacques said:

In any case, I didn't find Policy Letter 11-01 particularly instructive as to the drafting question, and, as I suggested in my earlier post, I didn't see anything, either in the FAR or elsewhere, that suggests the REASON this particular inherently governmental function at FAR 7.503(c)(20) reads the way it does has changed since Policy Letter 92-1 or FAC 90-37.  If you don't find the trip down memory lane to be persuasive authority, though, I certainly understand.  That said, your suggestion it is "not appropriate" to use "anything other than 11-01 to draw conclusions on what is allowed" seems inconsistent with the very document you cite, when it points out it intends to "preserve a long-standing list of examples set out in the FAR of the most common inherently governmental functions."  76 Fed. Reg. at 56228 (emphasis added).

  You may not agree that 11-01 is the proper reference for applying guidelines for a determination of inherently governmental yet I will stick to my position that 11-01 stands as the appropriate guidance.  It seems that DoD acknowledges this at DFARS PGI 204_6 as well.   Memory lane does not matter. 

Bottom line is that the OP is on the right track that if he/she is "talking about an IG audit" with regard to "drafting" questioning it as potential procurement of  inherently governmental services is appropriate and a determination from a higher authority is needed.

 

 

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C Culham,

So, for the benefit of the OP, and with an eye to understanding the significance of our disagreement so far as it relates to the original question, let me attempt to summarize our disagreement as I understand it.

I argue, to better appreciate or understand FAR 7.503(c)(20), there may be some benefit to looking to the history of the language it uses.

You argue it is inappropriate to look to the history of the language that FAR 7.503(c)(20) uses, because of the mere existence of OFPP Policy Letter 11-01.

Ours seems to be an entirely academic discussion.  You have not explained how looking to the history leads to an improper result.

That said, I am concerned your latest post is potentially misleading.  You write, "No it [FAR 7.503(c)(20)] is not based on 92-1.  It is based on 11-01..."  Literally and chronologically, FAR 7.503(c)(20) is based on OFPP Policy Letter 92-1.  As I noted earlier, FAR Case 92-051 was intended "to implement of Office of Federal Procurement Policy (OFPP) Policy Letter 92-1, Inherently Governmental Functions."  61 Fed. Reg. 2627 (Jan. 26, 1996).  While the language of FAR 7.503(c)(20) was updated to reflect GAO's name change, it has otherwise remained unchanged since FAC 90-37.  Near as I can tell, FAR Subpart 7.5 has not been changed at all as a result of OFPP Policy Letter 11-01, despite the language that I quoted in an earlier post stating OFPP's expectation that Policy Letter 11-01 would be implemented in the FAR.

FAR 1.108(d)(1) states, "Unless otherwise specified, ... FAR changes apply to solicitations issued on or after the effective date of the change."  FAR 1.108(d)(2) continues, "Contracting officers MAY, at their discretion, include FAR changes in solicitations issued before the effective date, PROVIDED award of the resulting contract(s) occurs on or after the effective date." (emphasis added).  Near as I can tell, FAR Case 2012-001 has fallen off the face of the earth without ever becoming a final rule.  We obviously don't have an effective date for a FAR change, as we don't even have a FAR change.  We could speculate on why that is:  Maybe the powers that be decided no change in the FAR was necessary.  You may have your own theory.  In any case, if there was something about OFPP Policy Letter 11-01 that CONFLICTED with FAR 7.503(c)(20), the PCO would need a DEVIATION from the FAR to implement OFPP Policy Letter 11-01.  Fortunately, there isn't anything that conflicts, because the Policy Letter does NOTHING to change the original meaning of the specific inherently governmental function we have been discussing.  This strongly suggests the history remains relevant.

Now, you might not be a fan of legislative history or its regulatory equivalent.  If so, you are in good company.  I personally find it instructive, and I thought others might as well, so I shared it.

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Interesting that responses to IG reports gets escalated to same status as congressional testimony and GAO reports.  IG reports are common, numerous, and often covered very specialized and technical subjects.  While important, they hardly have the signifance of the other items.  For example this is their website.  Among other things, note the 13,000 reports

https://www.oversight.gov/

i see why government officials need to be responsible and accountable for responses by their personal involvement and perhaps complete preparation of the other items.  But not necessarily to IGs.  Often government must rely on specialized expertise of the contractors with government endorsement to address detailed replies to things they lack expertise.  So I don’t see any problems with contractor preparation of the replies with government approval and signature - thus taking ownership.  Wonder if the IG council had an influence? 

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On ‎11‎/‎1‎/‎2019 at 8:34 AM, Jacques said:

I didn't find anything in what followed that rejected the above quote. 

 

20 hours ago, Jacques said:

Ours seems to be an entirely academic discussion.

@Jacques  While academic your statement that nothing rejected "the above quote" (in 92-1) is misplaced.   OFPP Policy Letter 11-01 did as we have already wrestled in our discussion because the quote is non-existent in 11-01.  92-1 is gone, non-existent, in fact rejected if you will.  Simply the quote from 92-1 has no application with regard to guidelines for determining inherently governmental.  My position remains that using Policy Letter 92-1 is inappropriate .

20 hours ago, Jacques said:

You argue it is inappropriate to look to the history of the language that FAR 7.503(c)(20) uses, because of the mere existence of OFPP Policy Letter 11-01.

Not correct.  In my post to which you took issue  I argued  92-1 versus 11-01 and that was it.  You on the other hand then extended your premise that 92-1 is good reference because it is what created the language of the FAR at 7.503(c)(20).   On this my position is that 7.503(c)(20) is in fact still good regulation because 11-01 preserved its language. Or in other words regardless of whether 11-01 has been codified into the FAR drafting of IG audit reports is a function considered to be inherently governmental  or which shall be treated as such and a contract shall not be used for performance of the drafting, unless a determination at a higher level is made.   The guidelines for final determination of inherently government  and "drafting"  is in fact 11-01 and not 92-1.  Taking it one step further the quote from 92-1 that you provided was never codified in the FAR either it is rather a guideline that has since disappeared. 

22 hours ago, Jacques said:

Now, you might not be a fan of legislative history or its regulatory equivalent. 

I am and is the exact reason I stated that 92-1 guidelines is an inappropriate reference on how a determination regarding inherently governmental is to be made because it is policy that no longer exists.  My belief is that it would be much better to quote 11-01 and the caveats it makes on how an agency is to approach a determination of inherently governmental.

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1 hour ago, C Culham said:
23 hours ago, Jacques said:

You argue it is inappropriate to look to the history of the language that FAR 7.503(c)(20) uses, because of the mere existence of OFPP Policy Letter 11-01.

Not correct.  In my post to which you took issue  I argued  92-1 versus 11-01 and that was it. You on the other hand then extended your premise that 92-1 is good reference because it is what created the language of the FAR at 7.503(c)(20).

I am not saying, and I have never said, that OFPP Policy Letter 92-1 represents authority in and of itself.  The language that we are attempting to understand is FAR 7.503(c)(20).  As that language has its origin in Policy Letter 92-1, Policy Letter 92-1 essentially represents the "legislative history" of FAR 7.503(c)(20),  The history of FAR 7.503(c)(2) represents persuasive authority as to what FAR 7.503(c)(20) means.

Oddly enough, OFPP Policy Letter 92-1 also represents part of the "legislative history" of the document you have been referencing, OFPP Policy Letter 11-01, so I am completely confused as to the point you are attempting to make.

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2 hours ago, C Culham said:

On this my position is that 7.503(c)(20) is in fact still good regulation because 11-01 preserved its language

FAR 7.503(c)(20) remains authority because it remains in the FAR.  Even if it conflicted with OFPP Policy Letter 11-01, it would remain authority until it was either removed from the FAR or a deviation was issued.  By its own words, Policy Letter 11-01 anticipated it would be implemented in the FAR.  Near as I can tell, it has not.

That the Policy Letter anticipated it would be implemented in the FAR is entirely consistent with 41 U.S.C. 1121(b), which provides:

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To the extent that the Administrator considers appropriate in carrying out the policies and functions set forth in this division, and with due regard for applicable laws and the program activities of the executive agencies, the Administrator may prescribe Government-wide procurement policies. The policies shall be implemented in a single Government-wide procurement regulation called the Federal Acquisition Regulation.

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C Culham,

At the risk of beating a dead horse, paragraph 2 of OFPP Policy Letter 11-01 begins, "Authority.  This policy letter is issued pursuant to section 6(a) of the Office of Federal Procurement Policy Act, 41 U.S.C. 405(a)..."  Section 405(a) is now 41 U.S.C. 1121(b).  The Policy Letter does not cite to former 41 U.S.C. 405(b) or present-day 41 U.S.C. 1121(d).  Paragraph 6 of the Policy Letter notes, "It is intended only to provide policy guidance to agencies in the exercise of their discretion concerning Federal contracting."  See, e.g., Systems & Programming Resources Inc., B-192190, Aug. 16, 1978, 78-2 CPD ¶ 124 (stating that OFPP Policy Letters represent "expression of executive branch policy rather than requirements established by law or regulation"), followed by Johnson Controls World Servs., Inc.; Meridian Mgmt. Corp., B-281287.5 et seq., June 21, 1999, 2001 CPD ¶ 3 at 5 n.2.  I don't understand why you put so much stock in an unimplemented OFPP Policy Letter, seemingly elevating it as somehow superior to a properly issued section of the FAR.

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