Federal agencies currently are updating their plans and preparing for a potential government shutdown in the absence of approved Congressional appropriations.
As a result, many industries, businesses and NPCA members are left to wonder how they will be affected.
Article I, Section 9, Clause 7 of the Constitution states, “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” In addition, the Antideficiency Act prohibits agencies from incurring obligations that are in advance of, or that exceed, an appropriation.
With only five working days left until current appropriations expire, U.S. government agencies, programs and initiatives that receive funding through annual discretionary appropriations will cease work except for anything deemed essential. Government funding includes both mandatory and discretionary spending initiatives. Mandatory spending such as Social Security and Medicare are not included in the annual appropriations.
There are 12 appropriations that cover discretionary spending across different agencies and government programs that need to be approved by Congress to avoid a full government shutdown. These also may be approved independently, which would lead to a partial government shutdown. Some of these discretionary appropriations include the military, income support programs, public health programs and transportation funding.
Listing the entirety of a shutdown’s impact on the precast concrete industry is impossible because of the vastness of government and the various different funding streams for different agencies and programs. However, based on guidance in OMB Circular A-11 section 124 and multiple legal opinions on the Antideficiency Act, here are the guidelines agency heads are following as they draft their operational plans.
Situations where an agency may continue working during a lapse of appropriations include:
- A statute or other legal requirement expressly authorizes an agency to obligate funds in advance of appropriations.
- The function addresses emergency circumstances, such that the suspension of the function would imminently threaten the safety of human life or the protection of property.
- The function is necessary to the discharge of the president’s constitutional duties and powers (e.g., commander-in-chief or conducting foreign relations).
Activities that an agency must continue, in the absence of appropriations, because their continuation is “necessarily implied” from the authorized continuation of other activities. These activities include efforts required to:
- Conduct an “orderly shutdown.”
- Support one of the above listed situations.
- Execute a congressionally authorized or appropriated function for which Congress has provided funding that remains available during the lapse, where the suspension of the related activity would prevent or significantly damage the execution of the terms of the statutory authorization or appropriation.
Based on these guidelines, most contract administration (oversight, inspection, payment, accounting) work will have to cease. Additionally, new obligations may not be incurred except in limited circumstances in support of one of the above situations or activities.
POTENTIAL GOVERNMENT SHUTDOWN AND THE FHWA
At a Sept. 20 House Transportation and Infrastructure Committee oversight hearing, Secretary Pete Buttigieg identified that his agency is now at the “money moving” stage of implementation. While there are many obstacles ahead to implement FHWA’s approximately $350 billion of the $1.2 trillion for public works, a government shutdown would not bring forward progress to a halt. The FHWA is funded outside of annual appropriations so all operations will continue as normal.
In layman’s terms: Money already identified and attached to approved projects will continue as is.
While the FHWA remains unaffected, it is unknown if any other government agencies are required in support of DOT’s activities and if they may be furloughed.
Brad Chinery, P.E., is director of technical services at NPCA.