Let’s put the politics of the 2013 government shutdown aside and look at the practical questions. Like the government employees that are affected, contractors want to know if they should come to work. And if they do come to work, will they get paid? Will the options be exercised? Will their contract be terminated for convenience? Since contracting officers and their representatives are unavailable during the shutdown, where do they find the answers?
We have discussed many of the most common contractor questions in our earlier blog entries, most of which stem from the shutdown that was threatened in 2011. As to whether contractors will get paid for their work, our discussion of the Supreme Court’s decision in Salazar v. Ramah Navajo Chapter, No. 11-551 (U.S. June 18, 2012), is also interesting. Husch Blackwell's client alert on the government shutdown is available here.
Here are some additional resources that address many of contractors’ most frequently asked questions:
- The Office of Management & Budget’s Memorandum M-13-22 (Sept. 17, 2013) [pdf]. Although drafted for use by the heads of executive departments and agencies, this memorandum includes an FAQ attachment that addresses many issues of concern to contractors.
- Section 124 of OMB Circular A-11, “Agency Operations in the Absence of Appropriations" [pdf]. In addition to a brief discussion of the Attorney General’s key opinions on the effects of the Antideficiency Act, this document provides guidance to agencies on the preparation and implementation of plans for a government shutdown.
- Congressional Research Service’s September 25, 2013 Report RL34680, entitled “Shutdown of the Federal Government: Causes, Processes, and Effects” [pdf]. This report, prepared for members of Congress, discusses the impacts of government shutdowns, drawing specifically from the 21-day shutdown that took place from December 16, 1995 to January 6, 1996.
- Congressional Research Service’s April 6, 2012 Report R42469, entitled “Government Procurement in Times of Fiscal Uncertainty" [pdf]. This 31-page report addresses the contractual mechanisms implicated by funding shortfalls. It includes 217 footnotes containing references to procurement statutes and FAR clauses on suspension of work and termination for convenience, as well as a discussion of board decisions.