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Appendix B (for informational purposes only)

July 21, 2000

MEMORANDUM

TO:CA/PPT/FO

FROM:L/CA

SUBJECT:Contracting Out Passport Functions

We understand that you have been asked by the passport agency employees’ union whether the passport adjudication function can be contracted out.  In 1992 we advised the Passport Office that it cannot be contracted out because passport adjudication is an inherently governmental function.  This remains our view.  Thus, government employees must retain control over the actual decision to issue or to deny issuance of a passport.

The following is a summary of the basis for our opinion:

For purposes of federal acquisition law, the operative definition of “Governmental function” is that contained in section 6.e of OMB Circular No. A-76 (Rev. Aug. 4, 1983), which provides as follows:

e.  A Governmental function is one so intimately related to the public interest as to mandate performance by Government employees.  These functions include those activities, which require the exercise of discretion in applying Government authority or the use of value judgement in making decisions for the Government.  Services or products in support of Government functions, such as those listed in Attachment A, are commercial activities and are normally subject to this Circular.  Governmental functions normally fall into two categories:

(1)

The act of governing; i.e., the discretionary exercise of Government authority

(2)

Monetary transactions and entitlements

A United States passport may only be issued to citizens or nationals of the United States (22 U.S.C., sec. 212), and during the term of its validity is proof of U.S. citizenship or nationality (add cite).  The State Department’s authority to grant and issue passport is set forth in 22 U.S.C. sec 211 (a).  This section provides:

The Secretary of State may grant and issue passports, and cause passport to be granted, issued, and verified in foreign countries by diplomatic representatives of the United States, and by such consul generals, consuls, or vice consuls when in charge, as the Secretary of State may designate, and by the chief or other executive officer of the insular possessions of the United States, under such rules as the President shall designate and prescribe for and on behalf of the United States, and no other person shall grant, issue, or verify such passports.

22 U.S.C. 211 (a) (emphasis added).  A “passport” is defined by Department regulations as “a travel document issued under the authority of the Secretary of State attesting to the identity and nationality of the bearer.”

It is clear from these statutes that the decision to issue a passport is inherently a decision that the passport application is a citizen or national of the United States – a decision that only a government can make.  This does not mean that every step involved in processing passport applications involves the performance of an inherently Governmental function.  To the extent that steps leading up to passport issuance involve simply input of data or the evaluation of the application against well-defined objective criteria that may be performed with little or no exercise of discretion or judgement, it appears that such steps may properly be performed by contractor personnel.  See Nuclear Regulatory Commission Licensing Examiners, Comp. Gen. No. B-242942, 70 Comp. Gen. 682 (Aug. 27, 1991)

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