7.302 Policy
Source: FAR 7.302 on acquisition.gov
Government personnel must perform inherently governmental activities, while commercial activities are subject to competitive public-private sourcing under strict regulatory procedures.
Overview
FAR 7.302 establishes the policy framework for determining whether government personnel or contractors should perform specific activities, in accordance with OMB Circular A-76. The section emphasizes that inherently governmental functions must be performed by government employees, while commercial activities should be subject to competition. It outlines agency responsibilities for conducting public-private competitions, considering cost factors, and handling protests and contests related to performance decisions.
Key Rules
- Inherently Governmental Activities
- Must be performed by government personnel; contractors cannot perform these functions.
- Commercial Activities
- Should be competed between public and private sources to ensure best value.
- Public-Private Competitions
- Must follow OMB Circular A-76 and relevant FAR regulations, including cost considerations and procedural fairness.
- Agency Tender Official
- Recognized as an interested party for protest purposes at the GAO.
- Contests and Protests
- Must be handled per OMB Circular A-76 guidelines.
- Sealed Bidding
- No discussions to correct deficiencies are allowed during sealed bidding in public-private competitions.
Responsibilities
- Contracting Officers: Ensure competitions comply with OMB Circular A-76 and FAR, do not use contractors for inherently governmental functions, and follow proper protest and contest procedures.
- Contractors: Participate only in competitions for commercial activities, not inherently governmental functions.
- Agencies: Oversee compliance, conduct fair competitions, and manage protests/contests per regulations.
Practical Implications
- This section ensures that government retains control over inherently governmental functions and promotes competition for commercial activities. Contractors must be aware of the distinction and only compete for eligible work. Agencies and contracting officers must rigorously follow competition and protest procedures to avoid legal and compliance risks.
(a) The Circular provides that it is the policy of the Government to-
(1) Perform inherently governmental activities with Government personnel; and
(2) Subject commercial activities to the forces of competition.
(b) As provided in the Circular, agencies shall-
(1) Not use contractors to perform inherently governmental activities;
(2) Conduct public-private competitions in accordance with the provisions of the Circular and, as applicable, these regulations;
(3) Give appropriate consideration relative to cost when making performance decisions between agency and contractor performance in public-private competitions;
(4) Consider the Agency Tender Official an interested party in accordance with http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section3551&num=0&edition=prelim" target="_blank">31 U.S.C. 3551 to 3553 for purposes of filing a protest at the Government Accountability Office; and
(5) Hear contests in accordance with OMB Circular A-76, Attachment B, Paragraph F.
(c) When using sealed bidding in public-private competitions under OMB Circular A-76, contracting officers shall not hold discussions to correct deficiencies.