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Definitions of “inherently governmental activity” and other terms applicable to this subpart are set forth at Attachment D of the Office of Management and Budget Circular No. A-76 (Revised), Performance of Commercial Activities, dated May 29, 2003 (the Circular).
(a) The Circular provides that it is the policy of the Government to—
(1) Perform inherently governmental activities with Government personnel; and
(2) Subject commercial activities to the forces of competition.
(b) As provided in the Circular, agencies shall—
(1) Not use contractors to perform inherently governmental activities;
(2) Conduct public-private competitions in accordance with the provisions of the Circular and, as applicable, these regulations;
(3) Give appropriate consideration relative to cost when making performance decisions between agency and contractor performance in public-private competitions;
(4) Consider the Agency Tender Official an interested party in accordance with 31 U.S.C. 3551 to 3553 for purposes of filing a protest at the Government Accountability Office; and
(5) Hear contests in accordance with OMB Circular A-76, Attachment B, Paragraph F.
(c) When using sealed bidding in public-private competitions under OMB Circular A-76, contracting officers shall not hold discussions to correct deficiencies.
(a) The contracting officer shall, when soliciting offers and tenders, insert in solicitations issued for standard competitions the provision at 52.207-1, Notice of Standard Competition.
(b) The contracting officer shall, when soliciting offers, insert in solicitations issued for streamlined competitions the provision at 52.207-2, Notice of Streamlined Competition.
(c) The contracting officer shall insert the clause at 52.207-3, Right of First Refusal of Employment, in all solicitations which may result in a conversion from in-house performance to contract performance of work currently being performed by the Government and in contracts that result from the solicitations, whether or not a public-private competition is conducted. The 10-day period in the clause may be varied by the contracting officer up to a period of 90 days.
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