With Wednesday’s passage of a continuing resolution, Congress has approved funding to avoid a government shutdown – at least through December 9th. What happens next is anyone’s guess.
We’ve been here before – several times. What’s a Federal contractor to do in the event of a government shutdown? Our advice? Contractors should do pretty much the same as in previous years, specifically:
Prime Contracts: Organize your Prime contracts and discuss them with your Contracting Officers to see which contracts will remain funded and operational.
Subcontracts: Organize your subcontracts and talk with your Prime Contractor to see which contracts they believe, or have heard, will remain funded and operational. For those contracts that do not remain funded, determine where you fall in the hierarchy of subcontractors.
Make contingency plans for a shutdown.
- Staffing: Determine which staff would be idled by a shutdown and decide what to do with idle staff (overhead vs. furlough).
- Subcontractors: Make a plan for what you will do with subcontractors and take a look at your subcontract provisions to make sure you can do what you planned to do.
- Communications: Develop a communication plan to be used during the shutdown and put the mechanisms in place now.
- Cash flow: Plan for an interruption of cash flow and speak with your bankers now.
- Accounting: Have accounting provide for segregation of shutdown costs in case they are recoverable.
The recoverability of direct costs incurred during a shutdown in anticipation of a future award is extremely doubtful. Similarly, recoverability of direct costs incurred on a contract that was previously funded, but is now out of money (the infamous “waiting for the mod” situation), isn’t much better. It is possible, or even likely, that costs incurred during a gap in funding during a shutdown may be specifically barred from reimbursement when that modification finally arrives.
Funded contracts, regardless of type, should be unaffected as long as any required access to Government facilities or personnel is still available. If not, it may not be possible to continue performance and direct costs incurred during a lapse in performance will probably not be allowable.
Of course, if you receive a stop work order, everything changes. This is one of the few instances where a stop work order probably isn’t the worst case scenario. At least, under a stop work scenario, there are specific rules concerning the allowability of shutdown costs.
The flowchart below can help you assess your shutdown exposure on a contract-by-contract basis. We are recommending that companies distribute the flowchart to their project managers, have them annotate the chart with the task or contract name/number and value, and then highlight or annotate each active contract or task order. When completed, the company can compile the results to assemble a good picture of the impact of a shutdown. Not a bad start on an action plan, either.
So, the big question. How likely is a Government-wide shutdown after December 9th? Nobody really knows. In the past, Congress has been known to let the clock tick down to 30 minutes before the deadline. All we can do is to be prepared.
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