A-76
Updated: 29 May 2003

On 29 May 03 OMB issued revised Circular no. A-76. Although a review of the revision has not yet been completed, the revision is troubling in several ways. For example, in the 1999 revision an "inherently Governmental function" was defined as one "which is so intimately related to the public interest as to mandate performance by Government employees." Included were "activities which require either the exercise of discretion in applying Government authority or the use of value judgment in making decisions for the Government." Specific examples included the "regulation of industry and commerce, including food and drugs."

The 29 May 03 Circular has revised its explanation to read: "activities require the exercise of substantial discretion in applying governmental authority and/or in making decisions for the government." Note: substantial now modifies discretion and value judgment has been dropped. The specific examples were dropped and four classes of inherently Governmental functions identified:

  1. "Binding the United States to take or not take some action..."

  2. "Determining, protecting , and advancing ... interests by military or diplomatic action, civil or criminal judicial proceedings, contract management, or otherwise"

  3. Significantly affecting the life, liberty, or property of private persons;

  4. Exerting ultimate control over the acquisition, use or disposition of United States property..."

The "life, liberty and property" clause was somewhat clarified in a following section, where the Circular explains that an agency should consider "The provider's authority to take action that will directly affect the life, liberty or property of individual members of the public, including the likelihood of the provider's need to resort to force in support of a police or judicial activity; whether the provider is more likely to use force, especially deadly force..."

For now we should ponder whether our job requires the exercise of substantial discretion in applying governmental authority and/or in making decisions for the government.