D.C. Mun. Regs. r. 27-3001

Current through Register Vol. 71, No. 24, June 14, 2024

Rule 27-3001 - INHERENTLY GOVERNMENTAL FUNCTIONS

3001.1

An inherently governmental function involves, among other things, the interpretation and execution of the laws of the District to:

(a) Bind the District to take or not to take some action by contract, policy, regulation, authorization, order, or otherwise;

(b) Appoint, direct, or control officials or employees of the District;

(c) Approve District government policy, including budget policy;

(d) Approve the final selection or non-selection of individuals for District government employment;

(e) Approve position descriptions or performance standards of District government employees;

(f) Exert ultimate control over the acquisition, use, or disposition of the property, real or personal, tangible or intangible, of the District, including the control, or disbursement of, appropriated and other District funds;

(g) With respect to contracts to procure goods or services for the District:

(1) Determine what supplies or services are to be acquired by the District, and at what prices; provided, that the Director or his or her designee may give a contractor authority to acquire supplies for the District at prices within specified ranges or quantities and subject to other reasonable conditions considered appropriate;

(2) Participate as a voting member on any source-selection board, unless the contractor has:

(A) Been retained by the District for its specific technical expertise; and

(B) No conflict of interest exists with regard to the contract or vendors under consideration by the source-selection board.

(3) Approve any contractual documents, including documents defining requirements, incentive plans, and evaluation criteria;

(4) Award contracts;

(5) Administer contracts, including ordering changes in contract performance or contract quantities, taking action based on evaluations of contractor performance, and accepting or rejecting contractor products or services;

(6) Terminate contracts;

(7) Determine whether contract costs are reasonable, allocable, or allowable; or

(8) Evaluate a contractor's performance when the evaluation is to be used to determine whether payment should be made to the contractor and in what amount.

(h) Make a final adjudication in a civil or criminal proceeding or perform adjudicatory functions other than those relating to arbitration or other methods of alternative dispute resolution;

(i) Control criminal prosecutions;

(j) Direct the conduct of criminal investigations;

(k) Approve final agency responses to Freedom of Information Act requests including the determination to either withhold or release documents or approve agency responses to administrative appeals of Freedom of Information Act requests;

(l) Collect, control, and disburse fees, royalties, fines, taxes, and other public funds, unless authorized by law; and

(m) Command public safety, fire, emergency response, and homeland security employees.

3001.2

Inherently governmental functions do not normally include, among other things, services that involve or relate to:

(a) Gathering information for or providing advice, opinions, recommendations, or ideas to District government employees or officials;

(b) Budget analyses, including activities such as workload modeling, fact finding, efficiency studies, and cost analyses;

(c) Conducting analyses or feasibility studies, or providing strategy options to be used by agency personnel in developing policy;

(d) Providing research, analysis, draft language, or administrative support to District employees on regulations;

(e) Supporting contract management;

(f) Supporting agency responses to Freedom of Information Act requests, provided that such support is primarily technical or administrative in nature and does not involve making final decisions about document release or production;

(g) Providing information regarding agency policies or regulations, such as attending conferences on behalf of an agency, conducting community relations campaigns, or conducting agency training courses;

(h) Providing alternative dispute resolution services such as arbitration or mediation;

(i) Inspection services;

(j) Providing legal advice and interpretations of regulations and statutes to District officials, provided that District or an instrumentality thereof retains final decision- making authority on all dispositive matters;

(k) Representing the District as outside litigation counsel, bond counsel, or disclosure counsel, or in any legal proceedings, provided that District or an instrumentality thereof retains final decision-making authority on all dispositive matters;

(l) Special non- law enforcement, security activities that do not directly involve criminal investigations, such as prisoner detention or transport and non-military national security details;

(m) Routine voucher and invoice examination; and

(n) Functions that are primarily ministerial and internal in nature, such as building security, mail operations, operation of cafeterias, housekeeping, facilities operations and maintenance, warehouse operations, motor vehicle fleet management operations, or other routine electrical or mechanical services.

D.C. Mun. Regs. r. 27-3001

Final Rulemaking published at 66 DCR 13657 (10/18/2019)