So … Where’s the Money?

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Stinson - Government Contracting Matters

It’s September 24, 2020, and the 2020 fiscal year ends at the stroke of midnight on September 30th. Back in July, the House and Senate had passed their respective versions of the National Defense Authorization Act (NDAA) for FY 2021. Prognosticators were betting that we could have an appropriation bill signed into law before the end of the fiscal year. However, here we are and it looks like a formal NDAA for FY 2021 is not likely to be passed by Congress until after the election.

So where does that leave us? On September 22, the House introduced a Continuing Appropriations Act, 2021 and Other Extensions Act. This continuing resolution (CR) would provide appropriations to covered agencies through December 11, 2020. The bill has now been forwarded to the Senate. If it passes both houses of Congress it will then be sent to the President for signing into law. There then will be a continuation of funding to prevent a government shutdown that would otherwise take place for the agencies that have not had an appropriation bill passed for FY 2021.

If passed – and my betting money is on this occurring (especially since it’s an election year), although there may be some tinkering before it is finalized since there are six more days until the end of the fiscal year – the Department of Defense and other affected agencies will continue receiving funding at the FY 2020 levels. This means that there will be no new starts to programs, but only continuations of existing authorities, programs and activities under the following appropriations acts for FY 2020:

  1. The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2020 (division B of Public Law 116–94), except sections 791 and 792.
  2. The Commerce, Justice, Science, and Related Agencies Appropriations Act, 2020 (division B of Public Law 116–93), except the last proviso under the heading “Department of Commerce—Bureau of the Census—Periodic Censuses and Programs.”
  3. The Department of Defense Appropriations Act, 2020 (division A of Public Law 116–93), except title X.
  4. The Energy and Water Development and Related Agencies Appropriations Act, 2020 (division C of Public Law 116–94).
  5. The Financial Services and General Government Appropriations Act, 2020 (division C of Public Law 116–93).
  6. The Department of Homeland Security Appropriations Act, 2020 (division D of Public Law 116–93) (except for amounts in title II of division D of Public Law 116–93 that were designated by the Congress as being for an emergency requirement pursuant to section 251(b)(2)(A)(i) of the Balanced Budget and Emergency Deficit Control Act of 1985), and title I of division I of Public Law 116–94.
  7. The Department of the Interior, Environment, and Related Agencies Appropriations Act, 2020 (division D of Public Law 116–94).
  8. The Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2020 (division A of Public Law 116–94).
  9. The Legislative Branch Appropriations Act, 2020 (division E of Public Law 116–94), and section 7 of Public Law 116–94.
  10. The Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2020 (division F of Public Law 116–94), except title V.
  11. The Department of State, Foreign Operations, and Related Programs Appropriations Act, 2020 (division G of Public Law 116–94).
  12. The Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2020 (division H of Public Law 116–94)

CR at Section 101. The CR would provide that “No appropriation or funds made available or authority granted pursuant to section 101 for the Department of Defense shall be used for: (1) the new production of items not funded for production in fiscal year 2020 or prior years; (2) the increase in production rates above those sustained with fiscal year 2020 funds; or (3) The initiation, resumption, or continuation of any project, activity, operation, or organization … for which appropriations, funds, or other authority were not available during fiscal year 2020.” CR at Section 102. “[O]nly the most limited funding action of that permitted in the Act shall be taken in order to provide for the continuation of projects and activities.” CR at Section 110.

The CR does have a few exceptions – it would permit DoD to enter into a new contract for the procurement of up to two Columbia class submarines. Provisions under Title III Section B of the CARES Act would continue to fund prioritized reviews of drug applications, incentives, and manufacturer reporting requirements in response to drug shortages. Money would be allocated to the Patient Protection and Affordable Care Act, Medicare, and immigration. Money also is appropriated to fund “Presidential Transition Administrative Support” and Presidential records transition activities.

Funding is at the heart of being able to continue to operate the government. We will be watching this process closely.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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