Quote Originally Posted by martymayes View Post
The law regarding air traffic control was changed in 2002 from "Air traffic control is inherently a government function" to "Air traffic control is NOT inherently a gov function." I understand that was to make contract towers fully "legal" (I suppose prior to that they were not legal?)

This is an excerpt from Dorothy Robyn's testimony to the House Committee on Transportation & Infrastructure:

"
To the best of my research, there was no change in the law, just a determination by the executive branch that ATC was not inherently governmental, and was then considered "Category A." The definition of Category A are activities which may be commercial but are exempt from private sector performance. Further, former Secretary Pinetta (who signed the attachment to Ms Robyn's testimony) said at that time (2002) that there was no intent to privatize ATC. Subsequent to the 2002 executive declaration, the Office of Management and Budget published OMB PL 11-01, which specifically addresses what is inherently governmental.
Inherently governmental function, as defined in section 5 of the FederalActivities Inventory Reform Act, PublicLaw 105–270, means a function that isso intimately related to the publicinterest as to require performance byFederal Government employees.
(a) The term includes functions thatrequire either the exercise of discretionin applying Federal Governmentauthority or the making of valuejudgments in making decisions for theFederal Government...Aninherently governmental functioninvolves, among other things, theinterpretation and execution of the lawsof the United States so as —
...;
(3) to significantly affect the life, liberty, or property of private persons;

Further, the same document describes "Critical functions": "Critical function means a functionthat is necessary to the agency beingable to effectively perform and maintaincontrol of its mission and operations." As described later, critical functions, "should be reserved for Federalemployees to ensure the department oragency maintains control of its missionand operations "

Now, despite Ms Robyn's attempt to say that the United States should follow the administrative model of foreign governments, it seems clear -- to me anyway -- that ATC certainly involves exercise of discretion in applying Federal Government authority, interpretation and execution of the laws of the United States, and that the decisions made by these controllers significantly affect the life, liberty, and property of private persons. Not to mention direction and control of military forces (another inherently governmental function.)

Even if the decision to make ATC "Category A" in 2002 was justified, it still falls under the definition of "critical function" and should be reserved to Federal employees...unless you think that ATC is NOT a core mission of the FAA.

I may not be a former political appointee with one or more Ph.D's, but the whole issue of contractor support to the U.S. government (and particularly DoD) is something I am intimately involved with on a day to day basis. Apart from the problems noted elsewhere in this string, I get very uncomfortable whenever an agency decides to fudge on the definition to make life easier for them or to avoid direct accountability for that operation.

Does the U.S. government need acquisition reform? Absolutely!!! Somehow, it seems to me, anyway, that just farming it out is not genuine reform.