Insourcing Functions Performed by Federal
Contractors: An Overview of the Legal Issues
Kate M. Manuel
Legislative Attorney
Jack Maskell
Legislative Attorney
May 7, 2012
Congressional Research Service
7-5700
www.crs.gov
R41810
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues
Summary
Recent Congresses and the Obama Administration have taken numerous actions to promote
“insourcing,” or the use of government personnel to perform functions that contractors have
performed on behalf of federal agencies. Among other things, the 109th through the 111th
Congresses enacted several statutes requiring the development of policies and guidelines to
ensure that agencies “consider” using government employees to perform functions previously
performed by contractors, as well as any new functions. These statutes require that “special
consideration” be given to using government personnel to perform those functions (1) recently
performed by government employees, (2) closely associated with the performance of inherently
governmental functions, (3) performed pursuant to a contract awarded on a non-competitive
basis, or (4) performed poorly by a contractor because of excessive costs or inferior quality. The
Obama Administration has similarly promoted insourcing. For example, in February 2010, the
Secretary of the Army testified that the Army intended to insource 7,162 positions in FY2010 and
11,084 positions in FY2011 through FY2015.
Although the Department of Defense (DOD) subsequently abandoned such insourcing initiatives
because the initiatives did not result in significant savings, several contractors filed suit alleging
that DOD failed to comply with the applicable guidelines when insourcing particular functions.
The parties initially conceded that such suits were cognizable under the Administrative Procedure
Act (APA), which permits challenges to agency actions that are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law,” although the government has recently
attempted to assert that insourcing determinations are committed to agency discretion by law and,
thus, not reviewable by the courts. At first, there was some uncertainty as to whether the U.S.
Court of Federal Claims had jurisdiction over such suits under the Administrative Disputes
Resolution Act of 1996, or whether the federal district courts had jurisdiction under the APA.
However, most courts to address the issue have found that the Court of Federal Claims has
exclusive jurisdiction over challenges to insourcing determinations because such determinations
are made in connection with “proposed procurements” and at least some contractors are
“interested parties.” More recently, questions have arisen as to whether vendors whose contracts
have expired have standing to challenge insourcing determinations, as well as whether contractors
who are “interested parties” must also meet prudential standing requirements. These judicially
self-imposed limits on the exercise of jurisdiction ensure that plaintiffs are within the “zone of
interests” to be protected by the statutes they seek to enforce. In addition, the only court to reach
the issue assumed, without deciding, that certain insourcing guidelines were legally binding,
potentially leaving the issue to be addressed further once questions about standing are settled.
Other provisions of law could also constrain whether and how agencies may proceed with
insourcing in particular circumstances, or limit the activities that former contractor employees
may perform after being hired by the federal government. These include (1) contract law, under
which agencies could be found to have constructively terminated certain requirements contracts
by augmenting their in-house capacity to perform services provided for in the contract; (2) civil
service law, which would generally limit “direct hires” of contractor employees; and (3) ethics
law, which could limit the involvement of former contractor employees in certain agency actions.
Members of the 112th Congress have introduced several measures which seek to ensure that
certain contractors have standing to challenge insourcing determinations (H.R. 3893); would
provide for additional review of insourcing determinations that affect small businesses (H.R.
3851; H.R. 3980); or could otherwise constrain insourcing initiatives (H.R. 1474; S. 785).
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Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues
Contents
Introduction...................................................................................................................................... 1
Background...................................................................................................................................... 1
Legal Issues ..................................................................................................................................... 4
Administrative Procedure Act and Insourcing Guidelines ........................................................ 5
Jurisdictional Questions ...................................................................................................... 6
Whether Particular Guidelines Are Binding...................................................................... 11
Constructive Termination or Breach of Requirements Contracts ............................................ 13
Civil Service Laws and Limitations on “Direct Hires” ........................................................... 14
Ethics Laws and the Activities of Former Contractor Employees........................................... 15
Small Business Law ................................................................................................................ 17
Potential Congressional Actions .................................................................................................... 19
Contacts
Author Contact Information........................................................................................................... 20
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Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues
Introduction
While agencies are prohibited by federal law and policy from contracting out functions that are
“inherently governmental,”1 other functions could potentially be contracted out.2 There has long
been debate over both general government policies promoting the use of the private sector to
perform “commercial functions”3 and whether specific functions should be performed by
government personnel or contractors.4 However, since 2008, the insourcing initiatives of recent
Congresses and the Obama Administration have caused particular controversy.5 Several lawsuits
have been filed challenging agencies’ determinations to insource particular functions, and broader
questions have been raised as to whether agencies’ implementation of insourcing runs afoul of
civil service, ethics, or small business laws. This report provides a brief overview of key legal
issues related to recent insourcing initiatives. It will be updated as developments occur.
Background
Since January 1955, the federal government has consistently had policies promoting the use of
the private sector to produce commercial products and perform commercial services, although the
wording of such policies and, particularly, the degree to which they have been implemented by
the executive branch have varied over time.6 The George W. Bush Administration, for example,
1 In brief, an “inherently governmental function” is one that is “so intimately related to the public interest as to require
performance by Federal Government employees.” 31 U.S.C. §501 note, at §5(2)(A). There has recently been concern
about the definition of “inherently governmental functions” and, particularly, whether the existence of multiple and/or
contradictory definitions of this term has resulted in the contracting out of functions that must be performed by federal
employees. See CRS Report R42325, Definitions of “Inherently Governmental Functions” in Federal Procurement
Law and Guidance, by John R. Luckey and Kate M. Manuel (surveying existing definitions of inherently governmental
functions); CRS Report R42039, Performance of Inherently Governmental and Critical Functions: The Obama
Administration’s Final Policy Letter, by Kate M. Manuel, L. Elaine Halchin, and Erika K. Lunder (discussing Obama
Administration guidance regarding inherently governmental and related functions).
2 See, e.g., Gulf Group, Inc. v. United States, 61 Fed. Cl. 338, 341 n.7 (2004) (treating items on the Federal Acquisition
Regulation’s list of “functions approaching inherently governmental” as capable of being contracted out by agencies).
Congress can, however, remove agencies’ discretion to contract out particular functions by prohibiting them from
doing so (or from using appropriated funds to do so). See, e.g., Consolidated Appropriations Act, 2008, P.L. 110-161,
§730, 121 Stat. 1846 (2008) (“None of the funds made available in this Act may be used to study, complete a study of,
or enter into a contract with a private party to carry out, without specific authorization in a subsequent Act of Congress,
a competitive sourcing activity of the Secretary of Agriculture, including support personnel of the Department of
Agriculture, relating to rural development or farm loan programs.”).
3 See CRS Report R42325, Definitions of “Inherently Governmental Functions” in Federal Procurement Law and
Guidance, by John R. Luckey and Kate M. Manuel, at pp. 3-8. For purposes of insourcing and outsourcing, a
“commercial function” is “[a] recurring service that could be performed by the private sector. This recurring service is
an agency requirement that is funded and controlled through a contract, fee-for-service agreement, or performance by
government personnel. Commercial activities may be found within, or throughout, organizations that perform
inherently governmental activities or classified work.” See U.S. Office of Management and Budget, Circular No. A-76
(Revised), May 29, 2003, at D-2.
4 See, e.g., Duncan Hunter National Defense Authorization Act for FY2009, P.L. 110-417, §832, 122 Stat. 4535 (Oct.
14, 2008) (“It is the sense of Congress that ... the regulations issued by the Secretary of Defense pursuant to section
862(a) of the National Defense Authorization Act for Fiscal Year 2008 ... should ensure that private security
contractors are not authorized to perform inherently governmental functions in an area of combat operations.”).
5 See infra “Administrative Procedure Act and Insourcing Guidelines.”
6 Compare Bureau of the Budget Bulletin No. 55-4 (Jan. 15, 1955) (“[The] Federal Government will not start or carry
on any commercial activity to provide a service or product for its own use if such product or service can be procured
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Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues
promoted this policy vigorously under the name of “competitive sourcing” (later “commercial
services management”), which was a key component of the President’s Management Agenda.7 Its
doing so prompted concern among some commentators, who asserted that competitive sourcing
represented a concerted effort to shift work to the private sector and resulted in contractors
performing functions that should have been performed by government employees.8
Responding, in part, to such concerns, the 109th Congress enacted legislation directing the
Secretary of Defense to “prescribe guidelines and procedures for ensuring that consideration is
given to using Federal Government employees for work that is currently performed or would
otherwise be performed under Department of Defense [DOD] contracts.”9 These guidelines and
procedures are to ensure that “special consideration” is given to using government personnel to
perform functions that
• had been performed by government employees at any time on or after October 1,
1980;
• are closely associated with the performance of inherently governmental
functions;
• are performed under contracts that were not competitively awarded; or
• have been performed poorly by a contractor due to excessive costs or inferior
quality.10
Subsequent Congresses expanded upon these requirements. First, the 110th Congress required that
DOD guidelines and procedures also give consideration to using government employees to
perform new functions, as well as those that had been contracted out.11 Then, the 111th Congress
imposed similar requirements upon civilian agencies.12
(...continued)
from private enterprise through ordinary business channels.”) with Bureau of the Budget Circular A-76 (March 3, 1966)
(“The guidelines in this Circular are in furtherance of the Government’s general policy of relying on the private
enterprise system to supply its needs.”) and Office of Management and Budget Circular A-76, supra note 3 (“The
longstanding policy of the federal government has been to rely on the private sector for needed commercial services.
To ensure that the American people receive maximum value for their tax dollars, commercial activities should be
subject to the forces of competition.”). See also CRS Report R42341, Sourcing Policy: Selected Developments and
Issues, by L. Elaine Halchin.
7 U.S. Office of Management and Budget, Performance of Commercial Activities, 67 Fed. Reg. 69772 (Nov. 19, 2002)
(“President [George W. Bush] has identified competitive sourcing—i.e., the process of opening the government’s
commercial activities to the discipline of competition—as one of the five main initiatives of his Management Agenda
for improving the performance of government.”).
8 See, e.g., Am. Fed'n of Gov't Employees (AFGE), Privatization: Cleaning Up the Mess, February 9, 2009, available at
http://www.afge.org/index.cfm?page=2005LegislativeConferenceIssuePapers&fuse=Content&ContentID=1745
(“[Office of Management and Budget] officials illegally watered down the statutory definition when they overhauled
the A-76 Circular [in 2003].”).
9 National Defense Authorization Act for FY2006, P.L. 109-163, §343(a)(1), 119 Stat. 3200-01 (Jan. 6, 2006) (codified
at 10 U.S.C. §2461 note).
10 Id. at §343(a)(2)(A)-(D).
11 National Defense Authorization Act for FY2008, P.L. 110-181, §324, 122 Stat. 60-61 (Jan. 28, 2008) (codified at 10
U.S.C. §2463).
12 Omnibus Appropriations Act, 2009, P.L. 111-8, §736, 123 Stat. 689-91 (Mar. 11, 2009) (codified at 31 U.S.C. §501
note).
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When President Obama took office, these and related legislative actions13 were supplemented by
a number of executive branch initiatives that also promoted insourcing of at least certain
functions. President Obama himself paved the way for such initiatives with a March 4, 2009,
memorandum on government contracting, which suggested that “contractors may be performing
inherently governmental functions.”14 Although explicitly focused on impermissible and
inappropriate outsourcing of inherently governmental functions, this memorandum implied that at
least certain functions that have been outsourced should be returned to government performance
(i.e., insourced). DOD and the Office of Management and Budget (OMB) both subsequently
issued additional guidance regarding insourcing. In a May 28, 2009, memorandum, the Deputy
Secretary for Defense called for the development of insourcing plans and stated that insourcing
should be part of a “total force approach to workforce management and strategic human capital
planning.”15 OMB took a similar approach in its July 29, 2009, memorandum on “Managing the
Multi-sector Workforce,” directing agencies to conduct pilot human capital analyses of programs
where the agency has concerns about reliance on contractors.16
The President’s FY2011 budget submissions later reiterated the call for agencies to “be alert for
situations in which excessive reliance on contractors undermines the ability of the Federal
Government to control its own operations and accomplish its missions for the American
people.”17 DOD, in particular, heeded this call, with the Secretary of the Army testifying in
February 2010 that the Army intended to insource 7,162 positions in FY2010 and 11,084
positions in FY2011 through FY2015.18 Such announcements prompted some commentators to
object that DOD’s insourcing initiatives had become a “quota driven exercise.”19 While DOD’s
13 In addition to requiring the development of insourcing guidelines and procedures, the 109th through the 111th
Congresses enacted other legislation that could promote insourcing, or at least government performance of particular
functions. For example, the 111th Congress enacted legislation requiring agencies to complete inventories of their
service contracts before they “begin, plan for, or announce a study or public-private competition regarding the
conversion to contractor performance of any function performed by Federal employees pursuant to Office of
Management and Budget [OMB] Circular A–76 or any other administrative regulation or directive.” Consolidated
Appropriations Act, 2010, P.L. 111-117, §743(g), 123 Stat. 3218 (Dec. 16, 2009). Previously, the 110th Congress had
enacted legislation requiring OMB to review existing definitions of inherently governmental functions, in part to ensure
that such functions are not contracted out. Duncan Hunter National Defense Authorization Act for FY2009, P.L. 110-
417, §321(a)(1)-(4), 122 Stat. 4411 (October 14, 2008).
14 President Barack Obama, Government Contracting, Mar. 4, 2009, at 2, available at http://www.whitehouse.gov/
the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-Subject-Government.
15 Deputy Secretary of Defense, Insourcing Contracted Services: Implementation Guidance, May 28, 2009, Attachment
I, at 1, available at http://www.asamra.army.mil/scra/documents/DepSecDef%20Memo%2028MAY09%20Insourcing
%20Implementation%20Guidance.pdf.
16 Peter R. Orszag, Director, U.S. Office of Management and Budget, Managing the Multi-Sector Workforce, July 29,
2009, available at http://www.whitehouse.gov/sites/default/files/omb/assets/memoranda_fy2009/m-09-26.pdf.
17 ABA Public Contract Law Section, Legislative Coordinating Committee, Insourcing Initiatives, Mar. 6, 2010,
available at http://www.arnoldporter.net/resources/documents/InSourcing%20Presentation%20for%20ABA__VA_
804440_1_%20_2_.pdf.
18 See, e.g., Matthew Weigelt, Army Vows to Cut 7,000 Contractor Jobs This Year, Wash. Tech., Feb. 23, 2010,
available at http://washingtontechnology.com/articles/2010/02/23/army-insourcing-core-governmental-functions.aspx.
19 Professional Services Council, Letter to the Honorable Robert Gates, May 3, 2010, available at
http://www.govexec.com/pdfs/050410rb1b.pdf (objecting that DOD had largely insourced routine commercial
functions, not critical positions). In fact, the Ike Skelton National Defense Authorization Act for FY2011 responded, in
part, to such concerns by prohibiting DOD from establishing goals or quotas for insourcing functions. See P.L. 111-
383, §323, 124 Stat. 4184 (Jan. 7, 2011) (codified at 10 U.S.C. §2463). See also National Defense Authorization Act
for FY2012, P.L. 112-81, §931(a), 125 Stat. 1543 (Dec. 31, 2011) (indicating that nothing in the revised 10 U.S.C.
§129a shall be construed to authorize the establishment of numerical goals or budgetary savings targets for the
conversion of functions to performance by DOD civilian personnel or for conversion to performance by contractor
(continued...)
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initiatives were largely abandoned after Secretary of Defense Robert Gates noted that DOD was
not “seeing the savings [it] had hoped from insourcing,”20 they generated several lawsuits,
discussed in more detail below, alleging that agencies failed to comply with their own policies
and procedures when determining to insource specific functions.21
Legal Issues
Because federal agencies have broad discretion in determining their own requirements and how
they will meet these requirements, whether with their own employees or by contracting out,22
there do not appear to be any legal barriers to insourcing per se.23 However, various provisions of
federal law could constrain whether and how agencies may proceed with insourcing in particular
circumstances, as well as limit the activities that former contractor employees may perform after
being hired by the federal government. These provisions include (1) the Administrative Procedure
Act, which could potentially preclude agencies from implementing insourcing determinations that
were not made in accordance with any applicable statutes, regulations or guidelines; (2) contract
law, under which agencies could be found to have constructively terminated for convenience, or
even breached, certain requirements contracts by augmenting their in-house capacity to perform
services provided for in the contract; (3) civil service law, which would generally limit “direct
hires” of contractor employees; and (4) ethics law, which could limit the involvement of former
contractor employees who are hired by the government in certain agency actions. No issues of
small business law would appear to be implicated, even though small businesses are generally
given special consideration under federal law,24 and some commentators have expressed concern
(...continued)
personnel).
20 See, e.g., Matthew Weigelt, Insourcing Failed, DOD’s Gates Says. Now What?, Wash. Tech., Aug. 10, 2010,
available at http://washingtontechnology.com/articles/2010/08/10/gates-insourcing-did-not-work.aspx. Instead, among
other things, Secretary Gates directed a 10% reduction in funding for support contractors in each of the next three fiscal
years.
21 One such suit also alleged that the contractor was denied due process of the law in violation of the Fifth Amendment
to the U.S. Constitution because of the Air Force’s failure to comply with its insourcing guidelines. See Triad Logistics
Servs. Corp. v. United States, 2012 U.S. Claims LEXIS 393, at *16 (Apr. 16, 2012). However, this allegation was not
further developed in the litigation, and no other challenge to an insourcing determination appears to have raised the
issue.
22 See Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940) (“Like private individuals and businesses, the
Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and
to fix the terms and conditions upon which it will make needed purchases.”) (emphasis added). The legislative branch
can, however, restrict the discretion of the executive branch to contract out, or perform in-house, specific functions.
See, e.g., Water Resources Development Act, P.L. 101-640, §314, 104 Stat. 4641 (Nov. 28, 1990) (codified at 33
U.S.C. §2321) (“Activities currently performed by personnel under the direction of the Secretary in connection with the
operation and maintenance of hydroelectric power generating facilities at Corps of Engineers water resources projects
are to be considered as inherently governmental functions and not commercial activities.”); National Defense
Authorization Act for FY1994, P.L. 103-160, §848(a)(1), 107 Stat. 1724-25 (Nov. 30, 1993) (codified at 10 U.S.C.
§2304e(a)) (prohibiting certain types of competition between DOD and small businesses).
23 Other aspects of sourcing policy may also raise legal issues, such as whether the agency properly conducted any
public-private competitions that resulted in outsourcing determinations. See, e.g., Patricia A. Thompson—Agency
Tender Official, B-310910.4 (Jan. 22, 2009). However, such issues are outside the scope of this report. The report also
does not address any de facto limits on insourcing that may be imposed by agency personnel ceilings or caps.
24 See, e.g., Small Business Act of 1958, P.L. 85-536, §2(a), 72 Stat. 384 (July 18, 1958) (codified at 15 U.S.C.
§631(a)) (“[It is] the declared policy of the Congress that the Government should aid, counsel, assist, and protect,
insofar as is possible, the interests of small-business concerns.”).
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that insourcing, at least as implemented to date, has disproportionately affected small
businesses.25 However, the Obama Administration has provided that, as a matter of policy,
agencies should place a lower priority on reviewing certain functions performed by small
businesses when determining which functions should be insourced, as well as give small
businesses preference when determining who performs work that remains in the private sector
after related functions are insourced.26
Administrative Procedure Act and Insourcing Guidelines
Assuming that the decision to insource particular functions is not “committed to agency
discretion by law,”27 as the government has recently asserted,28 the Administrative Procedure Act
(APA) could potentially constrain such decisions by allowing challenges to agency actions that
are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”29
Where insourcing is concerned, applicable laws could include various statutes requiring DOD to
“use the least costly form of personnel consistent with military requirements and other needs of
the Department,”30 or to ensure that the difference in the cost of performing functions with DOD
civilian employees (as opposed to contractors) exceeds certain thresholds when determining
whether a function should be insourced.31 It could also potentially include various guidelines,
such as DOD’s directive on “Estimating and Comparing the Full Costs of Civilian and Military
Manpower and Contract Support.”32 Guidelines not based in statutes or regulations are not
necessarily enforceable in the same way that statutes and regulations are. However, they could be
found to be legally binding if the agency intended to be bound, or has employed the guidelines in
such a way that they are binding as a practical matter.33
To date, no court appears to have directly addressed whether the particular guidelines utilized in
the Obama Administration’s insourcing initiatives are legally binding, although one court seems
25 See, e.g., Robert A. Burton & James Y. Boland, Concrete Steps Government Should Take to Alleviate Growing
Procurement Challenges for Small Businesses, 94 Fed. Cont. Rep. 190 (Aug. 17, 2010).
26 Office of Management and Budget, Office of Federal Procurement Policy, Publication of the Office of Federal
Procurement Policy (OFPP) Policy Letter 11-01, Performance of Inherently Governmental and Critical Functions, 76
Fed. Reg. 56227, 56239-40 (Sept. 12, 2011).
27 5 U.S.C. §701(a)(2).
28 See Triad Logistics, 2012 U.S. Claims LEXIS 393, at *77. The court did not directly reach the merits of this
argument, but expressed concern that, were this argument to prevail, agencies’ insourcing determinations could be
“unreviewable.” See id., at *83 (“Unreviewable decision-making authority by Executive Branch agencies, as proposed
by the government, requires close attention.”).
29 5 U.S.C. §706(a)(2)(A).
30 10 U.S.C. §129a (2010). This language was deleted in December 2011, as part of amendments made to Section 129a
by the National Defense Authorization Act for FY2012. See P.L. 112-81, §931(a), 125 Stat. 1543.
31 10 U.S.C. §2463(e)(1)(c).
32 See Office of the Sec. of Defense, Directive-Type Memorandum (DTM) 09-007, Sept. 2, 2011, available at
http://www.dtic.mil/whs/directives/corres/pdf/DTM-09-007.pdf.
33 See, e.g., Pacific Molasses Co. v. Fed. Trade Comm'n, 356 F.2d 386, 389-90 (5th Cir. 1996) (“When an
administrative agency promulgates rules to govern its proceedings, these rules must be scrupulously observed. This is
so even when the defined procedures are ‘… generous beyond the requirements that bind such agency …’ For once an
agency exercises its discretion and creates the procedural rules under which it desires to have its actions judged, it
denies itself the right to violate these rules.”). But see Farrell v. Dep't of the Interior, 314 F.3d 584, 590 (Fed. Cir. 2002)
(“The general consensus is that an agency statement, not issued as a formal regulation, binds the agency only if the
agency intended the statement to be binding.”).
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to have assumed, without deciding, that certain guidelines were binding.34 Rather, the litigation
has focused, first, upon whether the U.S. Court of Federal Claims or the federal district courts
have jurisdiction over challenges to insourcing determinations and, more recently, upon whether
particular contractors have standing to challenge insourcing determinations.
Jurisdictional Questions
In the earliest cases challenging DOD’s insourcing initiatives, the parties generally agreed that
insourcing determinations were reviewable under the APA,35 but contested whether the Court of
Federal Claims or the federal district courts had jurisdiction over such challenges. This question
arose because the APA’s waiver of the government’s sovereign immunity as to suits brought
against it in the federal district courts is limited, and does not apply if “any other statute that
grants consent to suit expressly or impliedly forbids the relief which is sought.”36 Among the
other statutes waiving the government’s sovereign immunity is the Tucker Act, as amended by the
Administrative Dispute Resolution Act (ADRA) of 1996. Further, the Tucker Act, as amended by
ADRA, provides that, effective January 1, 2001, the U.S. Court of Federal Claims has exclusive
trial-level jurisdiction over any
action by an interested party objecting to a solicitation by a Federal agency for bids or
proposals for a proposed contract or to a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.37
The key questions in the initial cases were, thus, (1) whether plaintiffs challenging insourcing
determinations are “interested parties,” and (2) whether insourcing determinations are made “in
connection with a procurement or a proposed procurement.” If the plaintiffs were interested
parties and insourcing determinations were made in connection with procurements or proposed
procurements, then the Court of Federal Claims would have exclusive jurisdiction over such
challenges pursuant to the Tucker Act, as amended by ADRA. However, if insourcing
determinations were not made in connection with procurements or proposed procurements, then
the federal district courts would have jurisdiction under the APA.38
34 See Santa Barbara Applied Research, Inc. v. United States, 98 Fed. Cl. 536, 546-49 (2011) (finding that certain
actions by the Air Force (e.g., allocating fewer civilian employees to perform particular functions than had been
requested by the program offices, using DTM-COMPARE to account for overtime risk) were not arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with the law).
35 See Vero Tech. Support, Inc. v. U.S. Dep’t of Defense, 733 F. Supp. 2d 1336, 1340 (S.D. Fla. 2010) (“There appears
to be no dispute that the APA governs the Plaintiff’s claim. Rather the dispute concerns which court has jurisdiction to
hear the APA claim.”). Although the government has also argued that contractor challenges to insourcing
determinations constitute contract disputes, which are within the exclusive jurisdiction of the Court of Federal Claims
under the Contract Disputes Act, this argument has generally been rejected. See, e.g., K-Mar Industries v. U.S. Dep’t of
Defense, 752 F. Supp. 2d 1207 (W.D. Okla. 2010); Rothe Development, Inc. v. U.S. Dep’t of Defense, 2010 U.S. Dist.
LEXIS 116934 (W.D. Tex. Nov. 3, 2010), motion to amend denied, 2011 U.S. Dist. LEXIS 5236 (W.D. Tex. Jan. 19,
2011).
36 5 U.S.C. §702. Because it is a sovereign, the United States is immune to suits without its consent. See, e.g., United
States v. Sherwood, 312 U.S. 584, 586 (1941).
37 Ch. 359, 24 Stat. 505 (Mar. 3, 1887) (codified, as amended, at 28 U.S.C. §1491(b)(1)).
38 It is unclear whether the federal district courts would exercise jurisdiction over challenges to insourcing
determinations if such determinations were found to be made in connection with a procurement, but contractors were
found not to be “interested parties” for purposes of ADRA. See Vero Tech. Support, 733 F. Supp. 2d at 1341-42
(suggesting that standing to bring suit in the Court of Federal Claims under ADRA is “narrower” than standing to bring
(continued...)
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Majority View That the Court of Federal Claims Has Exclusive Jurisdiction
Most courts that have considered the question have found that contractors’ challenges to
insourcing determinations fall within the exclusive jurisdiction of the Court of Federal Claims
because at least some contractors are interested parties, and insourcing determinations are made
in connection with proposed procurements. For example, in Rothe Development, Inc. v.
Department of Defense, the U.S. Court of Appeals for the Fifth Circuit upheld a decision by the
district court finding that a contractor was an interested party because it had a “direct economic
interest as a prospective bidder” in any contracts that would be awarded for the functions if the
functions were not insourced.39 In reaching this conclusion, the Fifth Circuit relied upon the
definition of “interested party” given in the Competition in Contracting Act (CICA) of 1984,
which has generally been found to apply for purposes of the Tucker Act.40 CICA defines an
“interested party” as an “actual or prospective bidder or offeror whose direct economic interest
would be affected by the award of the contract or by failure to award the contract.”41 The Fifth
Circuit similarly affirmed the district court’s finding that an insourcing determination is made in
“connection with” a procurement or proposed procurement for purposes of the Tucker Act
because federal law defines “procurement” as including:
all stages of the process of acquiring property or services, beginning with the process for
determining a need for property or services and ending with contract completion and
closeout,
and the process of determining a need for property or services “necessarily includes the choice to
refrain from obtaining outside services.”42 The court further emphasized the incongruity between
the district court’s having jurisdiction when an agency determines to insource, but not when it
determines to outsource.43 The U.S. Court of Appeals for the Eleventh Circuit, in an unpublished
(...continued)
suit in district court under the APA). However, the U.S. Court of Appeals for the Eleventh Circuit affirmed the district
court’s decision in this case in an unpublished opinion without addressing the issue. See 437 Fed. App'x 966 (11th Cir.
2011).
39 666 F.3d 336, 338 (5th Cir. 2011), aff’g 2010 U.S. Dist. LEXIS 116934. In fact, the Fifth Circuit noted that, “if Rothe
had no such interest, it is difficult to imagine how it might demonstrate a particularized injury necessary for Article III
standing.” Id.
40 See, e.g., Vero Tech. Support, 2011 U.S. App. LEXIS 16598, at *11 (citing American Federation of Government
Employees, AFL-CIO v. United States, 258 F.3d 1294, 1302 (Fed. Cir. 2001)). However, it should be noted that, while
the Eleventh Circuit relied upon the Federal Circuit’s decision in AFGE in concluding that ADRA relies on CICA’s
definition of “interested party,” the district court questioned the relevance of this case to determinations of who is an
interested party for purposes of ADRA because the case involved a challenge by government employees—not a
contractor—to agency sourcing determinations. See 733 F. Supp. 2d at 1343.
41 P.L. 98-369, §2713, 98 Stat. 1183 (July 18, 1984) (codified, as amended, at 31 U.S.C. §3551(2)).
42 Rothe Dev., 666 F.3d at 339 (quoting 41 U.S.C. §111). As the Fifth Circuit noted, the Tucker Act does not define
“procurement.” However, the Office of Federal Procurement Policy Act (OFPPA) does, and its definition has generally
been found to apply for purposes of the Tucker Act. See, e.g., Vero Tech. Support, 437 Fed. App’x at 769 (citing
Distributed Solutions, Inc. v. United States, 539 F.3d 1340, 1345 (Fed. Cir. 2008), as holding that the meaning of
“procurement,” for purposes of ADRA, comes from the OFPPA).
43 Rothe Dev., 666 F.3d at 339 (“Rothe’s construction of procurement would require us to believe Congress intended
concurrent jurisdiction over bid protests where the [DOD] determined it could execute functions more cost-effectively
with federal employees, but exclusive jurisdiction in the Court of Federal Claims where the [DOD] concluded an
outside contract was more efficient. We refuse to adopt so narrow a meaning of procurement.”).
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decision, and various federal district courts have relied upon similar reasoning in finding that the
Court of Federal Claims has exclusive jurisdiction over challenges to insourcing determinations.44
The Court of Federal Claims has also consistently found that insourcing determinations are made
in connection with procurements or proposed procurements and that at least certain challenges to
insourcing determinations are within its jurisdiction.45 However, in its three decisions, to date,
regarding DOD’s recent insourcing initiatives, the Court of Federal Claims has adopted differing
views as to whether plaintiffs who are interested parties under ADRA must meet prudential
standing requirements.46 First, in Santa Barbara Applied Research, Inc. v. United States, the court
expressly rejected the government’s argument that the case should be dismissed because the
plaintiff contractor was not “within the zone of interests to be protected” by the statutes
governing insourcing.47 The court did so because it construed the decision by the U.S. Court of
Appeals for the Federal Circuit in American Federation of Government Employees, AFL-CIO v.
United States to mean that prudential standing is not required in bid protests under ADRA
because ADRA’s standing requirements are “more stringent” than the APA’s.48 However, the
Santa Barbara court also suggested that, if prudential standing were required, contractors
challenging insourcing determinations would possess such standing because the Ike Skelton
National Defense Authorization Act for FY2011 “was enacted, at least in part, for the benefit of
the contracting community.”49 But later, in its decision in Hallmark-Phoenix 3, LLC v. United
States, the Court of Federal Claims dismissed on prudential standing grounds a contractor’s
challenge to the Air Force’s determination to insource certain supply services that the contractor
44 See, e.g., Vero Tech. Support, 437 Fed. App'x at 771; Fisher-Cal Indus., Inc. v. United States, 2012 U.S. Dist. LEXIS
36508 (D.D.C., Mar. 19, 2012); Harris Enterprises, Inc. v. U.S. Dep't of Defense, 2010 U.S. Dist. LEXIS 143574
(W.D. Tex., Oct. 12, 2010). Another case challenging an agency insourcing determination was settled by the parties
without a decision on the merits. See Rohmann Servs., Inc. v. Dep’t of Defense, Case No. 10-CV-0061 (W.D. Texas).
This appears to have been the earliest of the cases challenging the Obama Administration’s insourcing initiatives, and
the terms of the settlement were widely characterized as a “win” for the contractor because the agency continued the
contract. See, e.g., Matthew Weigelt, Small Business Fights Insourcing … and Wins, Wash. Tech., May 5, 2010,
available at http://washingtontechnology.com/articles/2010/05/03/procurement-insourcing-boone-v-air-force.aspx.
45 See, e.g., Santa Barbara Applied Research, 98 Fed. Cl. at 542-43 (Firestone, J.). In reaching this conclusion, the
court noted that, under the precedents of the U.S. Court of Appeals for the Federal Circuit, the phrase “in connection
with a procurement” includes any connection with any stage in the acquisition process, including “the process for
determining a need for property or services.” Id. at 453. The court found that there was such a connection in the case of
an insourcing determination because an insourcing determination involves a decision to stop procuring goods or
services and, thus, is “made for the purpose of determining the need for contract services.” Id. The court also found that
the plaintiff was an “interested party” under ADRA because insourcing would directly affect its economic interests
given that it “has a government contract and claims that it would expect to compete for future government contracts but
for the errors made by the Air Force in its in-sourcing determination, which prevents [the incumbent contractor] or any
other contractor from performing the functions at issue.” Id.
46 The concept of prudential standing is a “judicially self-imposed limit[] on the exercise of federal jurisdiction.” Elk
Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (internal quotations omitted). It is “founded in concern
about the proper—and properly limited—role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490,
498 (1975). In determining whether prudential standing exists, the analysis focuses upon “whether the interest sought to
be protected by the [plaintiff] is arguably within the zone of interests to be protected by the statute … in question,” or
whether the plaintiffs are “merely incidental beneficiaries” of the statutory provisions at issue. Nat’l Credit Union
Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 494 n.7 (1998); Ass’n of Data Processing Serv. Orgs., Inc. v.
Camp, 397 U.S. 150, 152-53 (1970).
47 Santa Barbara Applied Research, 98 Fed. Cl. at 544.
48 Id. For more on the AFGE decision, see supra note 40.
49 98 Fed. Cl. at 544. The Ike Skelton National Defense Authorization Act prohibits DOD from establishing goals or
quotas for insourcing functions. See supra note 19.
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had provided.50 The Hallmark-Phoenix court did so because it found that prudential standing
requirements were applicable to bid protests given Supreme Court precedents, which applied
prudential standing analysis in non-APA cases, and earlier bid protest decisions, which also
imposed prudential standing requirements.51 The Hallmark-Phoenix court further found that the
contractor was not within the “zone of interests” protected by the various statutes governing
insourcing since these statutes were intended to be enforced by Congress, not the courts.52 Most
recently, however, in Triad Logistics Services Corporation v. United States, the Court of Federal
Claims did not reach the question of prudential standing,53 but expressed both disagreement with
the Hallmark-Phoenix decision,54 and reservations about whether the plaintiff contractor could be
found to be within the “zone of interests” of one of the statutes that the court relied upon in Santa
Barbara.55
Because the “decisions of one judge … on the Court of Federal Claims do not serve to bind
another judge of the court,”56 it is presently unclear whether contractors challenging insourcing
determinations must meet prudential standing requirements. In addition, the most recent decision,
Triad Logistics Services Corporation, potentially introduced another factor into the analysis.
There, in finding that the plaintiff contractor was not an interested party and, thus, lacked
standing, the court distinguished between contractors currently holding contracts, and those
whose contracts have expired.57 In so doing, the court asserted that the situation in Santa Barbara
was different than the situation in Triad Logistics because the contractor in Santa Barbara had an
“ongoing contract” that was “in-sourced after the enactment of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011,” while the contract in Triad Logistics had expired before
50 99 Fed. Cl. 65 (2011) (Allegra, J.).
51 Id. at 69-71 (citing, among other things, Bennett v. Spear, 520 U.S. 154, 163 (1997), which noted that courts will
apply the prudential standing requirements unless Congress has “expressly negated” them).
52 Id. at 72-76. In reaching this conclusion, the court focused specifically on 10 U.S.C. §129a and 10 U.S.C. §2463.
Prior to being amended in December 2011, Section 129a required the Secretary of Defense to “use the least costly form
of personnel consistent with military requirements and other needs of the Department.” However, according to the
court, the fact that Section 129a’s direction to “use the least costly form of personnel” is “buried” among reporting
provisions, and its origin as a “sense of Congress” provision, indicate that it was not intended to benefit contractors. Id.
at 72-73. Section 2463 similarly requires the development and implementation of insourcing guidelines, but the court
also found that nothing in this provision “remotely suggests an intent to confer a right to judicial review.” Id. at 74. The
court reached this conclusion because both the text and legislative history of Section 2463 evidenced an intent that
DOD would be accountable to Congress, not the courts, for its performance in insourcing, including its compliance
with insourcing guidelines. Id. at 74-75.
53 2012 U.S. Claims LEXIS 393, at *76 (Horn, J.). In Triad Logistic’s case, the Government Accountability Office
(GAO), which shares jurisdiction over contractor bid protests with the Court of Federal Claims, had found that it could
not hear challenges to insourcing determinations that allege an agency failed to comply with its internal guidelines. See
Triad Logistics Servs. Corp., B-403726 (Nov. 24, 2010) (finding that the former 10 U.S.C. §129a (1) did not actually
require a cost comparison and (2) did not constitute a procurement statute). Instead, GAO viewed this statute as one
governing DOD personnel policy and, thus, outside its jurisdiction to hear protests “concerning an alleged violation of
a procurement statute or regulation.”
54 2012 U.S. Claims LEXIS 393, at *79 (“This court cannot agree with the broad statement by the Hallmark-Phoenix
court.”).
55 Id. at *81 (suggesting that the contractor in question could not be found to be within the “zone of interests” protected
by Section 323 of the Ike Skelton National Defense Authorization Act for FY2011 unless that provision were construed
to apply retroactively). A fundamental canon of statutory interpretation is that laws will not be given retroactive effect
unless there is clear congressional intent to the contrary. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991)
(“[A]bsent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment”).
56 Tamerlane, Ltd. v. United States, 81 Fed. Cl. 752, 759 (2008).
57 2012 U.S. Claims LEXIS 393, at *84-85.
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the function was insourced (and before the Ike Skelton National Defense Authorization Act was
enacted).58 However, it is unclear whether the Santa Barbara court itself would necessarily have
drawn such a distinction between expired and ongoing contracts, or whether future courts will
find this distinction persuasive.59
Minority View That the Federal District Courts Have Jurisdiction
One federal district court has, however, found that the district courts have jurisdiction over
challenges to insourcing determinations because such challenges are not within the Court of
Federal Claim’s jurisdiction under ADRA. In K-Mar Industries, Inc. v. Department of Defense,
the U.S. District Court for the Western District of Oklahoma found that a contractor challenging
an insourcing determination is not an “interested party,” within the meaning of the CICA because
no contract or prospective contract is at issue.60 The K-Mar court similarly found that an
insourcing determination is not made “in connection with a procurement or a proposed
procurement,” given the definition of “procurement” in the Office of Federal Procurement Policy
Act (OFPPA) of 1974, which is used for purposes of ARDA.61 In finding that an insourcing
determination did not involve a procurement, the court relied on the plain meaning of the OFPPA,
which, it found, provides that procurement begins with determining “a need for property or
services,” not with determining “whether there is a need” for property or services.62 The court
also noted that the term “acquisition,” which it characterized as “the critical concept” within the
definition of “procurement,” denotes only purchasing or leasing by contract,63 and that even if
ADRA’s grant of jurisdiction arguably applied through a broad reading of the definition of
“procurement,” this would not constitute a clear jurisdictional grant and waiver of sovereign
immunity, only an implied one, and waivers of sovereign immunity are construed narrowly.64
58 Id.
59 Were such a distinction adopted, it would arguably be in keeping with the government’s assertion that challenges to
insourcing determinations brought after the functions have been insourced are moot. See Fisher-Cal Industries, 2012
U.S. Dist. LEXIS 36508, at *5. The government only recently appears to have made this argument, and no court has
directly addressed its merits.
60 752 F. Supp. 2d at 1211. In a separate decision, the court denied K-Mar’s motion for a preliminary injunction.
However, in so doing, it made clear that “[n]othing stated in this order is intended to pre-judge in any way the merits of
the procedures-based claims. At this stage the court has no view regarding the merits of any permanent relief based on
these claims.” K-Mar Industries v. U.S. Dep’t of Defense, 2010 U.S. Dist. LEXIS 126955 (W.D. Okla., Nov. 4, 2010).
61 752 F. Supp. 2d at 1212. The OFPPA defines “procurement” as including “all stages of the process of acquiring
property or services, beginning with the process for determining a need for property or services and ending with
contract completion and closeout.” P.L. 93-400, §4, 88 Stat. 796 (Aug. 30, 1974) (codified, as amended, at 41 U.S.C.
§111). See supra note 42.
62 K-Mar Indus., 752 F. Supp. 2d at 1212. The government had attempted to argue that, for purposes of ADRA and the
OFPPA, the “process for determining a need for property or services” begins with a decision by the agency as to
whether there is a need to acquire property or services and, thus, encompasses any insourcing determination.
63 Id. This definition also comes from the OFPPA. See 41 U.S.C. §131 (“[T]he term ‘acquisition’—(1) means the
process of acquiring, with appropriated amounts, by contract for purchase or lease, property or services (including
construction) that support the missions and goals of an executive agency, from the point at which the requirements of
the executive agency are established in consultation with the chief acquisition officer of the executive agency; and (2)
includes—(A) the process of acquiring property or services that are already in existence, or that must be created,
developed, demonstrated, and evaluated; (B) the description of requirements to satisfy agency needs; (C) solicitation
and selection of sources; (D) award of contracts; (E) contract performance; (F) contract financing; (G) management and
measurement of contract performance through final delivery and payment; and (H) technical and management
functions directly related to the process of fulfilling agency requirements by contract.”).
64 752 F. Supp. 2d at 1212.
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The K-Mar court also cited an earlier decision by the Court of Federal Claims wherein the Court
of Federal Claims appeared at least somewhat sympathetic to the argument that challenges to
agency insourcing determinations are within the jurisdiction of the district courts.65 There, in
finding that it lacked jurisdiction to hear a challenge to an insourcing determination because the
plaintiff’s claim was still pending in federal district court, the Court of Federal Claims had stated
that:
plaintiff’s deliberate choice of forum in the District Court and chosen basis for jurisdiction,
traditional APA jurisdiction, resonates with this court. Without a contract or solicitation at
issue, even as amended by the ADRA, Tucker Act jurisdiction to challenge insourcing policy
decisions is not immediately apparent.66
However, the court also noted that it “had not fully explored the issue at this time,”67 and a
subsequent decision by the same judge explicitly rejected these sentiments in favor of the
majority view that the Court of Federal Claims has exclusive jurisdiction over challenges to
insourcing determinations. 68
Whether Particular Guidelines Are Binding
If and when these jurisdictional questions are resolved, courts may have to determine which, if
any, of the current insourcing guidelines constrain an agency’s actions when bringing work in-
house.69 There are a number of such guidelines,70 some of which are clearly binding upon the
65 Id. at 1213 n.4
66 Vero Technical Support, Inc. v. United States, 94 Fed. Cl. 784, 792 (2010).
67 Id.
68 Triad Logistics Servs. Corp., 2012 U.S. Claims LEXIS at *46-*47 n.14 (“The court notes that Triad’s case raises
different issues from an earlier in-sourcing case brought before this Judge. … In Vero, although the court offered a
preliminary view on the broader issue of jurisdiction to review in-sourcing challenges under the Tucker Act, further and
more in-depth review has led the court to the different conclusion than suggested in Vero.”).
69 But see Santa Barbara Applied Research, 2011 U.S. Claims LEXIS 732, at *28-*57 (apparently assuming, without
deciding, that all of the guidelines in question were legally binding). Nonetheless, the court in Santa Barbara upheld
the agency’s insourcing determination because it found that various actions taken in making this determination were
not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
70 The recent statutes directing agencies to “consider” insourcing certain functions have, among other things, required
agencies to develop and implement guidelines for determining which functions should be insourced, a requirement that
the Office of Management and Budget (OMB) and individual federal agencies have met by developing several policies
that ensure functions are “performed in the most fiscally advantageous way possible,” and by establishing procedures
for conducting cost comparisons. See, e.g., Omnibus Appropriations Act, 2009, P.L. 111-8, §736, 123 Stat. 689-90
(Mar. 11, 2009) (requiring civilian agencies to develop guidelines); National Defense Authorization Act for FY2008,
P.L. 110-181, §324(a)(1), 122 Stat. 60 (Jan. 28, 2008) (requiring defense agencies to develop guidelines); Dep't of
Defense, Personnel & Readiness, OSD Costing Information, available at http://prhome.defense.gov/RSI/
REQUIREMENTS/INSOURCE/INSOURCE_COSTING.ASPX; OMB Civilian Fringe Benefit Cost Factor, quoted in
Rohmann Servs., Inc. v. U.S. Dep't of Defense, No. SA-10-CA-0061-XR, Application for Preliminary Injunction (W.D.
Tex., filed Feb. 9, 2010) (requiring agencies to assume certain “fringe costs,” as well as loss of manpower productivity,
when conducting cost comparisons). Other sources cited by Rohmann include (1) 10 U.S.C. §129a, which previously
stated that “[t]he Secretary of Defense shall use the least costly form of personnel consistent with military requirements
and other needs of the Department;” (2) Under Secretary of Defense (Personnel and Readiness)’s Guidelines and
Procedures for Implementation of 10 U.S.C. §2463, which reads, “[r]equests for manpower shall be fiscally informed
and closely managed to ensure responsible stewardship of Defense resources. When a [DOD] Component … is
considering whether to convert from contractor to government performance, manpower managers shall follow standard
… procedures to determine and validate the manpower requirements.… Also, the effectiveness, efficiency, and
economy of the activity shall be assessed;” and (3) Insouring Implementation Guidance, which authorizes the
(continued...)
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agency (e.g., statutes, regulations promulgated by a notice and comment process) and others of
which may not be (e.g., statements, policies). Where guidelines not based in statutes or
regulations are concerned, courts may need to determine, among other things, whether the agency
intended to be bound or has employed the guidelines in such a way that they are binding as a
practical matter, because this is key to determining which agency statements and policies are
enforceable under the APA.71
To date, the only court to address the issue has apparently assumed, without deciding, that DOD’s
guidance on “Estimating and Comparing the Full Costs of Civilian and Military Manpower and
Contract Support,” among other things, was legally binding.72 However, as other courts consider
the various guidelines that might apply, they could potentially find that certain guidelines are not
legally binding, or that any binding guidelines do not require the specific procedures that the
agency failed to implement when making its allegedly improper insourcing determination. The
latter proved to be the case in Labat-Anderson, Inc. v. United States, where the contractor claimed
that DOD improperly insourced functions the contractor had performed while DOD prepared to
award a new contract.73 In particular, the contractor claimed that DOD did not follow the
procedures for comparing the costs of performing the function in question with government and
contractor employees that were set forth in OMB Circular A-76, 10 U.S.C. §2462, and Executive
Order 12615.74 However, the Court of Federal Claims ultimately found that
1. the cost-comparison and other requirements of OMB Circular A-76 were binding
only insofar as they had been incorporated into agency regulations, and the
relevant DOD regulations either did not specify procedures for conducting cost
comparisons or did not apply;75
2. the agency had complied with the requirements in 10 U.S.C. §2462, although not
with the allegedly related requirements in OMB Circular A-76 that had not been
incorporated into regulations;76 and
3. Executive Order 12615 did not bind the executive branch because it explicitly
stated that it did not create a private right of action, and it did not provide the
court with a meaningful standard of review.77
Similar findings could result as courts consider the particular insourcing guidelines currently at
issue. Additionally, different courts (or different judges on the same court) could potentially reach
differing conclusions as to whether particular guidelines are binding.78
(...continued)
insourcing of “contracted services that [DOD] civilian employees can perform … if a cost analysis shows that [DOD]
civilian employees would perform the work more effectively than the private sector.” See Rohmann Servs., Inc. v. U.S.
Dep't of Defense, No. SA-10-CA-0061-XR, Original Complaint for Declaratory and Injunctive Relief, at ¶¶ 34-36
(W.D. Tex., filed Jan. 26, 2010).
71 See supra note 33 and accompanying text.
72 See, e.g., Santa Barbara Applied Research, 98 Fed. Cl. at 549.
73 65 Fed. Cl. 570, 572 (2005).
74 Id. at 573-74.
75 Id. at 577-79.
76 Id. at 579-80.
77 Id. at 580-81.
78 For example, some, but not all, federal circuits have found that the 1983 and 2003 versions of OMB Circular A-76
were issued pursuant to statutory authority, which is one of the conditions for guidelines being reviewable by the
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Constructive Termination or Breach of Requirements Contracts
Because certain contracts provide for the contractor to supply all of the contracting activity’s
requirements for goods or services, there could also be situations where the government must
either delay insourcing so as to allow current contracts to expire, or face the prospect of liability
to the contractor for constructive termination for convenience79 or even breach of contract.80 This
issue is most likely to arise with so-called “requirements contracts,” or contracts
by which one party, the seller, agrees to satisfy all of the agency’s requirements for services
and/or items for a specified period of time. That contract is violated if either the buyer does
not purchase all of its requirements from the seller, or, if the seller fails to satisfy all of the
buyer’s needs. The consideration that makes such a contract binding is the buyer’s promise
to purchase all of its requirements from the seller and the seller’s promise to satisfy those
requirements.81
Because a requirements contract obligates the procuring activity to obtain “all” its requirements
from the contractor,82 not just a certain quantity specified in the contract,83 developing additional
(...continued)
federal courts. See Labat-Anderson, 65 Fed. Cl. at 578 (2003 version); Diebold v. United States, 947 F.2d 787, 800 (6th
Cir. 1991) (1983 version).
79 The government always has the right to terminate a contract for convenience, even if the “standard” termination-for-
convenience clause was not included in the contract. See, e.g., G.L.A. Christian & Assocs. v. United States, 375 U.S.
954 (1963) (court reading the standard termination-for-convenience clause into a contract from which it was lacking).
Depending upon the type of contract involved, agencies that no longer need certain services for which they had
contracted could also be obligated to pay the contractor, at a minimum, termination costs. For example, unless it
terminates the contractor for convenience, the government generally cannot avoid paying the contractor for goods or
services contracted for under a firm-fixed-price contract—the preferred type of government contract—if it no longer
needs those goods or services. See, e.g., North Chicago Disposal Co., ASBCA 25535, 82-1 BCA ¶ 15,488 (1981)
(government could not recover when it contracted for removal of “wet garbage” from galleys at the Great Lakes Naval
Base and then did not use the service because the galley personnel were unaware of it and disposed of the garbage in-
house); Rolligon Corp., ASBCA 8812, 65-2 BCA ¶ 15,488 (1965) (government liable for the full contract price when it
leased two experimental vehicles from the contractor for a one-year testing-and-evaluation period and then
discontinued testing after one month).
80 Courts often treat governmental failures to comply with the terms of procurement contracts as constructive
terminations of the contract. See, e.g., Nesbitt v. United States, 543 F.2d 583 (Ct. Cl. 1965); Integrity Mgmt. Int'l, Inc.,
ASBCA 18289, 75-1 BCA ¶ 11,235 (1975). However, they will generally not convert failure to order under a
requirements contract into a termination for convenience when the failure was in bad faith or based on circumstances
known to the government at the time of contracting. See, e.g., Torncello v. United States, 681 F.2d 756 (Fed. Cl. 1982)
(termination based on the contractor’s prices, which were known to the government at the time of contracting); Kalvar
Corp. v. United States, 543 F.2d 1298 (Ct. Cl. 1976) (termination in bad faith).
81 Aviation Specialists , Inc., DOTBCA 1967, 91-1 BCA ¶ 23,534 (Dec. 30, 1990). If the government legitimately has
no requirements for the goods or services in question, it has no obligation to purchase anything from the contractor. See
G.T. Folge & Co. v. United States, 135 F.2d 117 (4th Cir. 1943). Any estimates of quantity contained in the solicitation
or the contract are nonbinding. See, e.g., Franklin Co. v. United States, 381 F.2d 416 (Ct. Cl. 1967) (government not
obligated to furnish work orders up to the estimated amount); Kasehagen Sec. Servs., Inc., ASBCA 25629, 86-2 BCA ¶
18,797 (1986) (contractor must fill orders above the estimate). However, the government could potentially be liable to
the contractor if the estimate was negligently prepared. See, e.g., Alert Care Ambulance Serv., VACAB 2844, 90-3
BCA ¶ 22,945 (1990) (government failed to exercise due care in preparing the estimates because it did not consider
historical data regarding prior years’ requirements); Pied Piper Ice Cream, Inc., ASBCA 20605, 76-2 BCA ¶ 12,148
(1976) (same).
82 Requirements contracts can contain maximum quantities, requirements in excess of which the contractor is not
obligated to meet. See 48 C.F.R. §16.503(a)(2). They can also be limited to the procuring activity’s needs in a
particular geographic area. See, e.g., Metcom, Inc., B-153450 (May 6, 1964) (finding that a requirements contract
limited to a particular geographical area is no impediment to the issuance of a new invitation for bids for the same
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in-house capacity to perform the function—as would be expected to occur with insourcing—
could raise legal issues, depending upon the terms of the contract.
If the contract provides for the contractor to supply those goods or services “required to be
purchased by the government,” it will generally be construed to allow the procuring activity to
develop additional in-house capacity during the term of the contract.84 However, if the contract
provides that the contractor is entitled to supply those goods or services “in excess of the
quantities which the activity may itself furnish with its own capabilities,” it will generally be read
to refer to the procuring activity’s capabilities at the time of contracting and preclude the
development of additional in-house capacity during the term of the contract. For example, in
Maya Transit Company, the Armed Services Board of Contract Appeals found that the contractor
was entitled to an equitable adjustment (i.e., additional payment) under its contract because the
procuring activity developed additional in-house capacity to provide busing services and began
relying upon this capacity, instead of using the contractor’s busing services, to meet its
requirements, which had not changed.85 Similarly, in Henry Angelo & Sons, Inc., the Board
granted the contractor recovery under a contract for painting and related work after the procuring
activity began using its own personnel to paint military housing because it was less expensive.86
In so doing, the Board explicitly noted that “[t]he Government does not have an arbitrary right to
develop and use potential capabilities at the expense of a contractor.”87 While older, both cases
apparently remain good law.
Civil Service Laws and Limitations on “Direct Hires”
Civil service laws could also impose certain limitations upon agencies’ implementation of
insourcing by requiring that government positions generally be filled through a competitive
process with selections based on merit.88 Because of this requirement, it is typically not possible
for an agency insourcing a function to hire, on the spot, the person currently performing that
function under a contract.89 Only when an agency has “direct hire” authority, or other similar
authority, may it hire “any qualified person” without engaging in the appropriate competitive
(...continued)
items to be supplied to a different area).
83 Even in an “indefinite quantity contract,” there is some minimum quantity specified in the contract. The government
is only liable to the contractor for orders up to this amount. See, e.g., 48 C.F.R. §16.504(a)(1); Peter J. Brandon,
AGBCA 91-186-1, 92-1 BCA ¶ 24,648 (1991).
84 See, e.g., Export Packing & Crating Co., Inc., ASBCA 16133, 73-2 BCA ¶ 10,066 (1973); Applied Painting &
Decorating Co., ASBCA 15919, 73-2 BCA ¶ 10,358 (1973).
85 ASBCA 20186, 75-2 BCA ¶ 11,552 (1975).
86 ASBCA 15082, 72-1 BCA ¶ 9,356 (1972).
87 Id.
88 See, e.g., 5 U.S.C. §§3309-3318; 5 C.F.R. Parts 211 & 337.
89 “Targeting” contractors’ employees by informing them of government positions and encouraging them to apply is
generally permissible, even if some commentators have characterized it as inconsistent with the intent of the “Merit
System’s hiring and other procedures.” See David Hubler, Is the Government Trying to Steal Your Best Employees?,
Wash. Tech., Aug. 26, 2009, available at http://washingtontechnology.com/articles/2009/08/26/contractors-worries-
feds-fish-for-their-employees.aspx. For example, in Labat-Anderson, the court noted, without expressing any
disapproval, that the agency emailed employees of the incumbent contractor encouraging them to apply for positions
with the agency after determining to insource functions performed by the contractor. Labat-Anderson, 65 Fed. Cl. at
573.
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process.90 Currently, agencies have direct hire authority on a temporary basis under the National
Defense Authorization Act for FY2004, as amended by National Defense Authorization Act for
FY2008, for “Federal Acquisition positions.”91 These include positions in the General Schedule
(GS) contracting and purchasing series, as well as other positions in the GS series “in which
significant acquisition-related functions are performed.”92 However, agencies generally lack such
authority for other positions, which means that they cannot directly hire contractor employees,
although a person who performed a particular function on behalf of a contractor would probably
be well qualified when competing for any government position that would perform that function.
It should also be noted that civil service laws are intended to protect the integrity of the
government hiring process and applicants for government positions, not employers concerned
about the possibility of the government hiring “their” employees.93 Regardless of how sizable or
destructive to a firm,94 such loss of employees would not appear to give rise to any cause of
action against the government, particularly in the absence of “no-solicitation” clauses in federal
contracts.95 Depending upon their terms, such clauses could potentially preclude one party to a
contract from attempting to hire the employees of its vendors. However, such clauses are not
standard terms of government contracts. Similarly, even if employers were to draft covenants not
to compete that could be construed to prevent their employees from working for the government
in the future, such clauses are generally enforceable only against the employee, not against any
party who subsequently hires them.96
Ethics Laws and the Activities of Former Contractor Employees
The federal ethics and conflict of interest laws and regulations would not prohibit or necessarily
prevent the employment by a federal agency of an individual from the private sector who has
experience, expertise, or knowledge about or concerning a particular project, contract, or other
such matter. Once employed, however, there may exist certain narrow limitations on the official
duties or conduct of that government employee in relation to matters in which that employee may
have a continuing or current personal financial interest, or concerning which a former employer
of that individual is a direct party to a governmental transaction or other such matter.
90 See U.S. Office of Personnel Management, Direct-Hire Authority (DHA) Fact Sheet, available at
http://www.opm.gov/DirectHire/factsheet.asp (discussing the possible ways in which agencies can be authorized to
make direct hires).
91 P.L. 108-136, §1413(a), 117 Stat. 1665-66 (Nov. 24, 2003) (codified at 41 U.S.C. §1703) (authority through
September 30, 2007); P.L. 110-181, §853, 122 Stat. 250 (Jan. 28, 2008) (authority through September 30, 2012).
92 41 U.S.C. §1703(g)(1)(A).
93 See, e.g., Matthew Weigelt, Defense Officials Hone Their Insourcing Strategy, Wash. Tech., Feb. 3, 2010, available
at http://washingtontechnology.com/blogs/acquisitive-mind/2010/02/dod-insourcing-initiative.aspx (quoting some
contractors as objecting to the government’s “aggressiveness” in hiring their employees).
94 Id. (describing one small business that lost 20% of its workforce to the government).
95 See, e.g., Hubler, supra note 89.
96 For example, when Oracle hired the former chief executive officer of Hewlett-Packard, Hewlett-Packard filed suit
against this individual to enforce a confidentiality agreement, not against Oracle. See Hewlett-Packard Co. v. Hurd, No.
110CV181699, Civil Complaint for Breach of Contract and Threatened Misappropriation of Trade Secrets (Cal. Sup.
Ct., filed Aug. 26, 2010). Because they are restraints of trade, covenants not to compete and similar agreements are
looked upon with disfavor by the courts and will generally be enforced only when they are reasonable in terms of the
times, places, and activities which they encompass. See, e.g., Kolani v. Hluska, 75 Cal. Rptr. 2d 257 (Cal. App. 1998);
Rector-Phillips-Morse v. Vroman, 489 S.W.2d 1 (Ark. 1973).
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Unlike employees in the private sector, federal employees and officials are subject to several
layers of ethics and conflict of interest laws and regulations which seek to limit or restrict
personal “conflicts of interest,” and to assure fealty to the overall, public interest, as opposed to
private financial or economic interests of persons or companies. The principal statutory method
of dealing with potential conflicts of interest in the executive branch is through disqualification or
“recusal” requirements which prohibit a federal official from participating in any particular
governmental matter in which that official, or those close to the official, has any financial
interest.97 This conflict of interest provision, which is a criminal statute, is directed only at
current and existing financial interests and connections, and does not reach past affiliations,
employments, or previous representations of private clients.98
While the statutory disqualification provision is a criminal law covering only current financial
interests of the official, there are also “regulatory” recusal requirements that might apply in
narrow circumstances to certain past affiliations and previous economic interests. Such recusals
are generally required in relation to a “particular matter involving specific parties,” when entities
or organizations previously affiliated with the federal official are now parties to or represent
parties in those matters. The regulations provide that a federal official should recuse or disqualify
himself or herself from working on a particular governmental matter involving specific parties if
a “person for whom the employee has, within the last year, served as an officer, director, trustee,
general partner, agent, attorney, consultant, contractor or employee” is a party or represents a
party in such matter.99 This one-year recusal requirement, as to matters involving an official’s
former employers, businesses, clients, or partners, applies to any officer or employee of the
executive branch, but applies narrowly only to “a particular matter involving specific parties”
when such former employer or business associate is or represents a party to the matter. Matters
“involving specific parties” may apply to such things as contracts, investigations, or prosecutions
involving specifically identified individuals or parties, as opposed to broader “particular matters”
which may involve a number of persons or entities (such as most rule making). Notwithstanding
the fact that a past employer, client, or business associate with whom the employee has a
“covered relationship” may be a party or represent a party to such a matter, an employee may, as
with the regulatory restriction on current interests, receive authorization by his or her agency to
participate in the matter.100
There are also recusal requirements in regulations concerning such matters when a party (or one
representing a party) had made an “extraordinary payment” to the official prior to the official’s
entry into government. The regulations of the Office of Government Ethics provide for a two-year
recusal requirement which bars an official in the executive branch from participating in a
particular matter in which a “former employer” is or represents a party when that former
employer had made an “extraordinary payment” to the official prior to entering government. An
“extraordinary payment” is one in excess of $10,000 in value made by an employer after the
employer has learned that the employee is to enter government service, and one which is not an
97 18 U.S.C. §208. Interests “imputed” to the employee are the financial interests of that employee’s spouse or
dependents, or the financial interests of an organization in which the employee is affiliated as an officer, director,
trustee, general partner or employee, or one “with whom he is negotiating or has any arrangement concerning
prospective employment.”
98 CACI, Inc.-Federal v. United States, 719 F.2d 1567,1578 (Fed. Cir. 1983); Center for Auto Safety v. F.T.C., 586 F.
Supp. 1245, 1246 (D.D.C. 1984).
99 5 C.F.R. §2635.502(a), (b)(1)(iv).
100 5 C.F.R. §2635.502(c), (d).
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ordinary payment (that is, a payment other than in conformance with the employer’s “established
compensation, benefits or partnership program”).101 This disqualification provision may also be
waived in writing by an agency head, or if the individual involved is the head of an agency, by the
President or his designee.102
Finally, there are now additional restrictions on certain presidential appointees issued by way of
executive order. On January 21, 2009, President Obama issued an executive order requiring the
signing of an “ethics pledge” by all presidential and vice presidential appointees to full-time, non-
career positions in the executive branch, including all non-career SES appointees, and appointees
to positions excepted from competitive service because they are of a confidential or policy
making nature (such as Schedule C appointments).103 The “ethics pledge” places two additional
restrictions on such appointees entering the executive branch, with respect to their former
employers or clients. Initially, such “appointees” may not participate in, and must recuse
themselves for two years after entering federal service from any particular governmental matter
involving specific parties when a former client or former employer of the appointee is a party to
or represents a party in that particular matter.104 This extends the similar regulatory recusal
requirement applicable to all executive branch officials from one year to two years for such
“appointees.”105 Secondly, any such “appointees” who were registered “lobbyists”106 prior to
entering the executive branch, are under additional and further restrictions. Such
appointees/former lobbyists may not, for two years after entering the government, (1) participate
in any particular matter on which the appointee had lobbied within the two years prior to his or
her appointment, (2) participate in the specific issue area in which that particular matter falls, or
(3) seek or accept employment with any agency that the appointee had lobbied within the two
years prior to entering government service.107
Small Business Law
Small businesses generally receive special consideration under federal law and policy.108 For
example, it is the “declared policy of Congress that the Government should … insure that a fair
proportion of the total purchases and contracts or subcontracts for property and services for the
Government … be placed with small-business enterprises,”109 and there are a number of
contracting preferences for various types of small businesses, including set-asides, sole-source
awards, and price evaluation preferences.110 However, such protections do not appear to furnish
101 5 C.F.R. §2635.503(b)(1).
102 5 C.F.R. §2635.503(c).
103 Executive Order 13490, 74 Fed. Reg. 4673 (Jan. 26, 2009).
104 E.O. 13490, Section 1, para. 2.
105 See 5 C.F.R. §2635.502(a), (b)(1)(iv).
106 “Lobbyists” are those required to register and file under the Lobbying Disclosure Act of 1995, as amended,
including employees listed as lobbyists of organizations registering under the law. See 2 U.S.C. §§1602 et seq. The
restriction applies if one had been a “lobbyist” within two years of his or her appointment.
107 E.O. 13490, Section 1, para. 3.
108 See supra note 24.
109 15 U.S.C. §631(a).
110 See 15 U.S.C. §637(a) (set-asides and sole-source awards for small businesses owned and controlled by socially and
economically disadvantaged individuals); 15 U.S.C. §637(m) (set-asides for women-owned small businesses); 15
U.S.C. §644(g) (set-asides for small businesses generally); 15 U.S.C. §657a (set-asides, sole-source awards and price
evaluation preferences for Historically Underutilized Business Zone (HUBZone) small businesses); 15 U.S.C. §657f
(continued...)
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grounds for challenging an insourcing determination even if, as some commentators allege,
insourcing disproportionately affects small businesses.111 Under most provisions of federal law,
preferences for small business apply only in the case of “acquisitions” or “contract
opportunities,”112 which could be construed to mean that they exist only when an agency has
determined to contract out a function, not when it is determining whether to contract out a
function.113 While the regulations implementing Section 8(a) of the Small Business Act are
somewhat broader in that they refer to agency “requirements,”114 there does not appear to be any
precedent for construing the regulatory prohibition upon removing a requirement from the 8(a)
Program without the consent of the Small Business Administration (SBA) to mean that agencies
need the SBA’s permission to insource functions formerly contracted out through the 8(a)
Program.115 However, the Obama Administration’s Interagency Taskforce on Federal Contracting
Opportunities for Small Business has recommended that the “relationship between policies that
address the rebalancing of agencies’ relationship with contractors and small business contracting
policies” be clarified,116 and its policy letter on the performance of inherently governmental and
critical functions explicitly addressed insourcing of functions performed by small business
contractors. Among other things, the policy letter directs agencies, when reviewing outsourced
work for potential insourcing, to place a lower priority on reviewing work performed by small
businesses that is not inherently governmental, particularly if the agency has not met its small
business goals.117 The policy letter also directs agencies to give small businesses preference when
determining who performs the private-sector work that remains after related activities are
insourced.118
(...continued)
(set-asides and sole-source awards for service-disabled veteran-owned small businesses).
111 See Burton & Boland, supra note 25. Such commentators are concerned that the functions currently performed by
small businesses are more likely to be insourced than those performed by larger firms, and several small business
associations have called upon the Obama Administration to abandon its insourcing initiatives. See, e.g., U.S. Chamber
of Commerce et al., Letter to the President, Aug. 19, 2010, available at http://www.techamerica.org/content/wp-
content/uploads/2010/08/Coalition_Letter_President_Obama-Insourcing_Moratorium_8-19-2010.pdf (“Given
Secretary Gates’ recent acknowledgement that insourcing does not save money, Senator Menendez’s concerns that
insourcing is ‘counter-intuitive’ to your Administration’s goal of creating Federal contracting opportunities,
particularly for small and minority owned businesses, and the current state of the nation’s economy, we respectfully
urge your Administration to issue a revision to the insourcing agenda calling for an immediate moratorium on
all insourcing efforts throughout the Federal government.”) (emphases in original).
112 By definition, an “acquisition” is “the acquiring by contract with appropriated funds of supplies or services
(including construction) by and for the use of the Federal Government through purchase or lease, whether the supplies
or services are already in existence or must be created, developed, demonstrated, and evaluated.” 48 C.F.R. §2.101
(emphasis added).
113 Cf. supra note 63 and accompanying text (noting that “acquisition” has a narrower meaning than “procurement”
under the OFPPA).
114 See, e.g., 13 C.F.R. §126.606 (“A [contracting officer] may request that SBA release an 8(a) requirement ...
However, SBA will grant its consent only where neither the incumbent nor any other 8(a) participant can perform the
requirement.”).
115 In fact, a recent decision by the Court of Federal Claims upheld an agency’s determination to remove a requirement
from the 8(a) Program without the SBA’s consent. See K-LAK Corp. v. United States, 98 Fed. Cl. 1 (2011).
116 Report of the Interagency Task Force on Federal Contracting Opportunities for Small Business, 7 (Sept. 23, 2010),
available at http://www.sba.gov/idc/groups/public/documents/sba_homepage/contracting_task_force_report.pdf.
117 76 Fed. Reg. at 56239.
118 Id. at 56239-40. Specifically, the letter instructs agencies to use the “rule of two”—which generally requires that a
contract be “set aside” for small businesses if at least two small businesses are capable of performing it at a fair market
price—when deciding whether small or “large” businesses should perform the remaining private-sector work.
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Potential Congressional Actions
While most of the legal issues related to insourcing discussed herein arise from agencies’
implementation of insourcing initiatives, there is considerable scope for Congress to influence
whether and how insourcing is implemented. Broadly, Congress could restrict or expand the
scope of any insourcing. For example, the 112th Congress is currently considering legislation that
would limit agencies’ ability to insource functions by requiring that agencies complete a “public-
private competitive sourcing analysis” and determine that the “provision of such goods or
services by Federal employees provides the best value to the taxpayer” before using government
personnel to provide goods or services previously performed by a “private sector entity.”119 Other
measures introduced in the 112th Congress could, depending upon their implementation, have
similar effect. Such measures would require that certain officials, who were not involved in
making the insourcing determination, review the basis for the determination.120 Alternatively,
Congress could consider legislation, like that introduced in the 109th through 111th Congresses,
which would encourage agencies to insource particular functions.121
More narrowly, Congress could also expand or limit the jurisdiction of particular courts over
contractors’ challenges to insourcing determinations; require that agency insourcing guidelines be
promulgated in ways that are more or less likely to be found to be legally binding; expand or limit
direct hire authority; impose or remove restrictions upon the activities of former contractor
employees who enter government service; or otherwise seek to protect small businesses from the
effects of insourcing determinations. For example, Members of the 112th Congress have
introduced legislation that would amend 31 U.S.C. § 3551(1) to provide that the term “protest”
includes a written objection to the “conversion of a function that is being performed by a private
sector entity to performance by a Federal employee,” and that “any small business whose
economic interest would be affected by the conversation” is an “interested party.”122 This
legislation would also amend the Small Business Act to prohibit an agency from converting
functions performed by small businesses to performance by federal employees unless it has
“made publicly available, after providing notice and an opportunity for public comment,” its
procedures for making insourcing determinations.123 The requirement that agency procedures be
made publicly available after a notice-and-comment period, in particular, could help remove
questions as to whether agencies are bound by their insourcing guidelines that could arise when
these guidelines are promulgated as policy or guidance documents.124 However, questions about
119 Freedom from Government Competition Act, H.R. 1474, S. 785, at §4(e). A provision in the House-passed National
Defense Authorization Act for FY2012 (H.R. 1540, §939) would also have limited agencies’ ability to insource by
requiring the consideration of certain information when estimating and comparing the costs of performing functions
with DOD civilian employees and contractor personnel. However, this provision was not included in the bill as enacted.
120 See, e.g., Small Business Opportunity Act of 2012, H.R. 3980, §101 (requiring agency procurement center
representatives to “participate in any session or planning process and review any documents with respect to a decision
to convert an activity performed by a small business concern to an activity performed by a Federal employee”); Small
Business Advocate Act of 2012, H.R. 3851, §2 (requiring directors of various agency Offices of Small and
Disadvantaged Business Utilization to review and advise agencies on decisions to convert an activity performed by a
small business to an activity performed by federal employees).
121 See, e.g., Correction of Long-Standing Errors in Agencies’ Unsustainable Procurements (CLEAN-UP) Act, S. 991,
§4 (requiring agencies to report on how “wrongly contracted out work will be insourced,” among other things).
122 Subcontracting Transparency and Reliability Act of 2012, H.R. 3893, §301.
123 Id., at §302.
124 See supra notes 72-78 and accompanying text.
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prudential standing could potentially remain, notwithstanding the enactment of this legislation,
because prudential standing is a “judicially self-imposed limit[] on the exercise of federal
jurisdiction.”125
Author Contact Information
Kate M. Manuel
Jack Maskell
Legislative Attorney
Legislative Attorney
kmanuel@crs.loc.gov, 7-4477
jmaskell@crs.loc.gov, 7-6972
125 But see Bennett, 520 U.S. at 163 (noting that Congress can “expressly negate” prudential standing requirements).
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