Issue Briefs

Following are highlights from an OMB memo on preparations the government is to make in case continued funding for agencies is not enacted by the start of the new fiscal year.

Appropriations provided under the Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6) expire at 11:59 pm on Monday, September 30. The Administration does not want a lapse in appropriations to occur. There is enough time for Congress to prevent a lapse in appropriations, and the Administration is willing to work with Congress to enact a short-term continuing resolution to fund critical Government operations and allow Congress the time to complete the full year 2014 appropriations. However, prudent management requires that agencies be prepared for the possibility of a lapse. To that end, this guidance reminds agencies of their responsibilities to plan for agency operations under such a contingency.

At this time, agencies should be updating their plans for operations in the absence of appropriations, consistent with Section 124.2 ofOMB Circular A-ll (which is available at http://www.whjtehouse.gov/sites/default/fileomb/assets/all current year/sl24.pdf). In doing so, agencies should refer to relevant legal opinions issued by the Attorney General and the Office of Legal Counsel of the Department of Justice, which set forth the legal requirements imposed by the Antideficiency Act (Act) during a lapse in appropriations and the guiding standards agencies should use in making decisions under the Act during a lapse in appropriations.

In updating contingency plans, agency leaders should ensure that only those activities that are "excepted" pursuant to applicable legal requirements would continue to be performed during a lapse in the appropriation for those activities (unless the agency has a separate funding source for an activity that will remain available during a lapse and that the agency would use for the activity’s continued performance). Also, agency leaders should carefully review determinations regarding which employees would be necessary for the agency’s continued performance ofthose "excepted" functions, to ensure that these case-by-case determinations are consistent with the applicable legal requirements.

In addition, agencies should consult the attached Frequently Asked Questions (FAQ) documents, which address technical questions about particular matters related to agency operations during a lapse in appropriations. OMB previously issued these F AQ documents in April2011 and December 2011 (in conjunction with OMB Memoranda M-11-13 and M-12-03), and they provide an overview ofrelevant legal principles that apply to all government operations, address particular issues with contracts and grants, and answer questions relating to information technology, travel, orderly shutdown, and payment for excepted work. Also, the Office of Personnel Management (OPM) previously issued F AQs to assist agencies and employees on personnel issues associated with a funding lapse, which can be found on OPM’s website.

Agencies should continue the process ofupdating their plans until further guidance is provided. Should it prove necessary, OMB will provide additional information on planning efforts at a later date, including regarding external outreach to stakeholders and the release of updated plans.

Agency leaders with questions on the contents of this Memorandum or about the process for updating plans for the orderly shutdown of operations should contact Joseph Jordan, OMB’s Administrator for Federal Procurement Policy, or Geovette Washington, OMB’s General Counsel. Your staff should direct queries to your OMB Resource Management Office or your agency’s Office ofGeneral Counsel.

We greatly appreciate your cooperation. We will continue to be in close contact with you as developments unfold.

Supplement to Frequently Asked Questions Concerning Contingency Planning for Lapse in Appropriations

Q8: How long should "orderly shutdown" take?

AS: Ordinarily, furloughed employees should take no more than three or four hours to provide necessary notices and contact information, secure their files, complete time and attendance records, and otherwise make preparations to preserve their work. OMB Circular A-ll requires agencies to provide OMB with written justification for the conduct of orderly shutdown activities in excess ofa half-day. While it may be appropriate in limited circumstances for some employees to take longer to assist in shutdown activities (e.g., seeking court continuances or stop-work orders on pending contracts), these may not be necessary in the event that a very short period of a lapse in appropriations is anticipated. Agencies should make every effort to prepare for these needs in advance of a lapse so that orderly shutdown activities are minimized.

Q9: In the event of a lapse on a Friday, when would employees whose schedule is a normal Monday-Friday work week and who are funded by annual appropriations be expected to conduct orderly shutdown activities?

A9: They should be directed to return to work on the following Monday morning to conduct such activities.

QlO: Does this mean that they can continue to work remotely over the preceding weekend?

AlO: No. Following a lapse in appropriations, the Antideficiency Act bars nonexcepted work by such employees other than to perform orderly shutdown activities.

C. Travel

Qll: If employees funded through appropriations that have lapsed are on temporary duty assignments away from their normal duty stations at the time of an appropriations lapse, can they make arrangements to return home sooner than planned?

All: They are encouraged to do so wherever reasonable and practicable. However, agencies should make a determination of reasonableness and practicality based on the length ofthe assignment and the time required for return travel, compared to the anticipated length ofthe lapse, so as to minimize the burdens of doing so.

D. Entitlement to Payment for Excepted Work

Q12: How will excepted employees be paid for excepted work required during the lapse in appropriations?

All: Without further specific direction or enactment by Congress, all excepted employees are entitled to receive payment for obligations incurred by their agencies for their performance of excepted work during the period of the appropriations lapse. After appropriations are enacted, payroll centers will pay all excepted employees for time worked.