Public-Private Partnerships

In the spring of 2017, the Office of the Chairman convened dozens of federal officials from 21 different agencies who actively work on public-private partnerships (P3s). There is no binding definition of “public-private partnerships” that spans across all agencies, but an interagency working group has defined them as “collaborative working relationships between the U.S. government and non-federal actors in which the goals, structures, and roles and responsibilities of each partner, are mutually determined.”

Throughout the course of three in-person meetings from July 2017 through February 2018, and various discussions with individual group members, the working group collaboratively drafted the Guide to Legal Issues Encountered in Public-Private Partnerships (Guide). The draft Guide is, as its title indicates, centered on the major legal issues that agencies will likely encounter as they participate in P3s. It also offers a definition of P3s; briefly discusses a previous interagency effort regarding P3s; highlights activities that agencies often undertake as part of P3s; and provides examples of specific P3s. In addition, it discusses issues pertaining to agencies’ vetting of potential private partners.

In the summer of 2018, the Committee on Regulation took up a project on P3s, based on the work discussed above. The Committee considered a proposed recommendation at its most recent meeting. The proposed recommendation encourages agencies to distribute the Guide to attorneys and partnership staff. It is expected that agencies will use the Guide to help identify and address legal issues that arise when initiating or otherwise taking part in P3s. The proposed recommendation also calls for the Office of the Chairman to create a MAX.gov group that will, among other things, include resources related to vetting of potential partners and strategies for evaluating the success of P3s.

P3s are likely to grow in importance in the years ahead. The Trump Administration has emphasized the need for agencies to collaborate with the private sector. For example, on July 24, an executive order titled “Establishing the President’s National Council for the American Worker” was published in the Federal Register. It calls on agencies to “work with private employers, educational institutions, labor unions [and] other non-profit organizations . . . to update and reshape our education and job training landscape.”

The Administration also recently announced its intention to establish a “Government Effectiveness Advanced Research (GEAR) Center.” It describes the GEAR Center as “a public-private partnership focused on applied research that improves mission delivery, citizen services, and stewardship of public resources.”

Furthermore, on July 31, the Administration published a “Memorandum for the Heads of Executive Departments and Agencies” regarding its fiscal year 2020 research and development budget priorities. The memo notes that agencies “should engage in public-private collaboration to help align basic research with future private sector needs, establish testbeds and datasets reflective of real-world conditions, transfer techniques and technologies across sectors, and more quickly diffuse basic research results to the private sector.”   

As P3s grow in prominence throughout the federal government, ACUS expects the Guide and Recommendation to serve as useful tools to agencies.