Guidance on USAID Operations during a Lapse in Appropriations - January 15, 2019

MEMORANDUM FROM THE ACTING ASSISTANT ADMINISTRATOR FOR MANAGEMENT

TO: Principal Officers, Assistant Administrators and Heads of Independent Offices
SUBJECT: Guidance on USAID Operations during a Lapse in Appropriations

The purpose of this memorandum is to provide an updated integrated reference guide concerning the U.S. Agency for International Development’s operations before and during a lapse in appropriations. (This version supersedes all previous guidance.) Please note that all dates in the guidance are subject to change based on the status of the most current legislative action.

The attached guidance is split into two chapters to ensure clear operating instructions for: (a) a period of operations when Operating Expense (OE) funding is available (Chapter 1), and (b) operations during a lapse in appropriation when no OE is available (Chapter 2).

Under the current lapse in appropriation, which started on December 22, 2018, only Chapter 2 applies.

Please note the following change to approval and notification of travel that is applicable to all personnel:

All international travel, regardless of status (whether the employee is “excepted” or “exempt”), that is expected to commence on or after January 11, 2019 must be approved by the Bureau or Independent Office Head or the Mission Director. Operating units must send a copy of the travel approval to the M/AA Tasker at maataskermaillist@usaid.gov. This includes travel by U.S. direct hires and personal service contractors (including U.S., Foreign Service National, and Third Country National.)

Note: All in-country travel is exempt from this process.

Responses to frequently asked questions are posted at https://www.usaid.gov/lapse-in-appropriations.

If you have any questions, please send an email to shutdown_info@usaid.gov.


Chapter 1

Chapter 1 applies to a scenario where there is no new Operating Expense (OE) appropriation or continuing resolution (CR) for FY 2019. If there is no new OE appropriation or CR on or after December 22, 2018, the Agency will continue operating using residual OE balances until these funds are insufficient to continue. During this time, operations will be restricted.

Funding will be subject to apportionment and allotment requirements. Those balances can be reprioritized and reallocated for use during a lapse in appropriations through the financial plan process. Such resources remain subject to any spending plans or notifications previously submitted to Congress on their functions; as well as statutory requirements regarding the reprogramming or transfer of funds, guidance from OMB, and any other relevant guidance.

Bureaus and offices must work with the Bureau for Management (M) and the Office of Budget and Resource Management (BRM) to identify residual balances available for continued operations in absence of an appropriation.

When operating using residual balances, these rules and restrictions apply:

  • Bureaus may not exceed residual balances identified by M or BRM;
  • OUs managing multi-year foreign assistance programs can make new obligations with FY 2018 and prior-year funds in coordination with BRM and the Office of U.S. Foreign Assistance Resources (F);
  • Commitments and obligations to new programs should not be made except to protect life and property;
  • No new purchases of equipment, services, or supplies for operational purposes may be made;
  • No new travel should be arranged; no one should make new arrangements to attend conferences;
  • Previously approved travel (prior to December 21, 2018) using FY 2018 funds may continue (M Bureau will review all approved travel in E2 and contact the OU if there are questions/issues);
  • No new offers of employment may be made as of December 21, 2018;
  • Prospective employees with a final offer letter may report to work;
  • For medical emergencies, medical travel and services obligations can be incurred;
  • Previously scheduled and funded training may continue as planned;
  • No representational events may be held;
  • No speeches should be made unless approved by Assistant Administrator, Bureau for Legislative and Public Affairs;
  • Petty cash reimbursements may be filed, but no money can be disbursed until appropriations or a continuing resolution have been enacted;
  • The metro check program will continue;
  • No overtime is authorized;
  • Compensatory time may be accrued; and
  • Time and attendance procedures will continue as normal,

Until there is an appropriation or a CR, any exceptions to the above must be approved by the Assistant Administrator, Bureau for Management in writing.

For USAID employees on details to other agencies affected by a lapse in appropriations, they should coordinate with their operating unit to determine if they should return to their home duty station.

Other agencies with a presence overseas may enter into a lapse of appropriations sooner because they operate under single-year appropriations. If an agency has determined that certain of its positions overseas do not meet the criteria of “excepted” in the absence of appropriations, and that determination conflicts with that of the Chief of Mission, then the Chief of Mission should attempt to resolve the matter directly with the parent agency concerned (see Chapter 2, Section I and II.).

If OE funds later become insufficient to continue operations, then the shutdown plan detailed in Chapter 2 becomes effective.

Chapter 2

Current Status: Chapter 2 applies since there is no new Operating Expense (OE) appropriation or CR beyond December 21, 2018 and the Agency will have insufficient OE funds to continue operations.

Chapter 2 applies to a scenario in which OE balances are insufficient to continue operations. If your operating unit is instructed to deliver furlough letters to non-excepted personnel, only excepted functions will be continued until appropriations are restored. Shutdown furloughs lasting more than 30 calendar days (22 workdays) are covered by OPM regulations under 5 CFR 752 or 5 CFR 359, subpart H, as applicable.

When a shutdown furlough goes beyond 30 days, agencies must treat it as a second shutdown furlough and issue another furlough notice, as a continuation of the first furlough, under 5 CFR 752 adverse action procedures (if applicable) for most employees or 5 CFR 359, subpart H (if applicable) for the Senior Executive Service. A written notice to furlough must be provided to each employee as soon as possible after the beginning of the second shutdown furlough. OMB will provide direction to all affected agencies concerning the timing of these second notifications. In the event OMB directs agencies to proceed with providing second furlough notices prior to the end of the first furlough period, agencies should explain that the second notice will be effective should the lapse in appropriations continue past the initial furlough period.

Chapter 2 contains a detailed plan for operating during a lapse in appropriations. For ease of use, Chapter 2 guidance is provided in the following sections:

I. Exempt Functions and Positions
II. Determination of Excepted Functions and Positions
III. Orderly Shutdown of Non-Excepted Functions
IV. Personnel
V. Lapsed Funds
VI. Travel
VII. Training
VIII. Allowances
IX. Grants and Contracts
X. Obligations and Disbursements
XI. Time and Attendance Reporting
XII. Outside Activities
XIII. Representation Events

I. Exempt Functions and Positions

Operating units with available balances in multi-year and no-year appropriations, trust funds, or the Working Capital Fund, as identified by the Bureau for Management (M) and Office of Budget and Resource Management (BRM), are exempt from the shutdown and will continue to operate until their respective balances are insufficient to continue. All personnel funded by these accounts are exempt from the shutdown and will continue to work until funds are depleted.

II. Determination of Excepted Functions and Positions

Definition of Excepted Functions: For planning purposes, USAID categorizes "excepted" functions that may be continued in an absence of OE appropriations as those necessary to protect life and safeguard government property and records, conduct foreign relations essential to national security, carry out the orderly shutdown of operations, and provide essential administrative support to excepted employees.

Employees performing the excepted functions described above would not be furloughed as a result of a shutdown, per one of the statutory exceptions below:

1. Authorized by necessary implication: Certain activities could be implicitly authorized because of their connection with other operations which are otherwise available to continue. This exception includes functions necessary to provide essential administrative support to other excepted employees.

2. Necessary for safety of human life or protection of property: The risk to life or property must be real, not hypothetical, so that discontinuing the activity would pose an imminent threat.

3. Discharge of President’s constitutional duties: The conduct of foreign relations essential to national security is such a discharge of the President’s Constitutional duties.

4. Necessary for the orderly shutdown of functions: USAID defines this category as those employees necessary to continue shutdown functions beyond the expected four hours for all other furloughed activities. Activities of employees during this period must be wholly devoted to closing down the function and, upon completion, these employees are furloughed. USAID expects the number of employees continuing to perform functions under this exception to decrease during the lapse of appropriation.

Employees performing "excepted" functions will continue to report to work and perform their duties, as will employees exempt from the shutdown. Similarly, OE funded administrative services contracts, which are fully funded through any potential shutdown period, may also continue.

USAID Assistant Administrators and Independent Office Directors are responsible for providing all due assistance to the M Bureau and the Office of Human Capital and Talent Management (HCTM) in developing and maintaining the list of personnel who will be expected to perform excepted functions in the absence of an appropriation or CR.

USAID’s Principal Officers at post are responsible for providing all due assistance to the Chief of Mission in developing plans for the conduct of business and the attendance of employees in the absence of an appropriation or CR. In order to facilitate this process, as well as to ensure that USAID’s requirements are fully considered and incorporated, USAID Principal Officers are expected to participate fully with the Chief of Mission and representatives of other agencies in this country team task. Only those operations determined to be excepted pursuant to the above criteria would be excluded from the shutdown and permitted to operate with only the minimum staff necessary during the funding lapse.

In the case of Foreign Service National (FSN) personal service contractors and FSN direct hires, if host-country labor laws provide that FSNs must be paid regardless of attendance (i.e., local labor law explicitly or in effect prohibits furloughing FSNs), these employees may be authorized to report to work and treated as excepted employees or placed on administrative leave, or other category required under local law, i.e., excused absence, if the Mission is unable to provide adequate supervision with other excepted staff. Supervisory Americans of FSNs may not be excepted automatically on the basis of their supervisory role. Their excepted status must be independently justified based on the above-mentioned criteria.

The list of recommended personnel performing excepted functions, in Washington and at post, must be updated and provided to HCTM 10 business days prior to expiration of an OE appropriation or as instructed if needed sooner. The M Bureau and the Office of the General Counsel (GC) will then review for compliance with A-11, Section 124 guidance.

III. Orderly Shutdown of Non-Excepted Employees

All employees scheduled to work on the first workday following a lapse in appropriations should report to work (this can be done in-person at their duty station or electronically if the position allows for it). Non-excepted employees should perform only those tasks necessary to safeguard property, records, and information and to complete administrative functions such as processing payroll for pay through the last workday before a lapse in appropriations. In addition, non-excepted personnel are expected to take measures to secure files; make external contacts necessary to communicate the office's status, such as notifying parties of the cessation of normal business; and cancelling non-essential meetings, conferences, and other previously arranged business; taking necessary action to protect confidential information; and processing unpaid bills for obligations incurred prior to the last workday before a lapse in appropriations. These activities may take up to four hours for employees.

After performing the functions necessary for an orderly suspension of non-excepted operations, employees performing non-excepted functions will be furloughed. Managers are reminded that the Government cannot accept voluntary services; therefore, no employee may work if he or she is in a non-excepted status. Employees are advised that "work" includes reporting to work as well as accessing the Agency’s network using a remote access token or mobile device and teleworking. These employees should be advised to monitor the news for information on an additional continuing resolution and should report back to work on their next scheduled workday once another CR or an appropriation bill is enacted (passed by the House and the Senate and signed by the President), unless told to do so earlier (i.e., for rotation or other purposes).

HCTM staff will scan and send electronically furlough notices and Form SF-8, Unemployment Compensation for Federal Employees Program, to Bureau/Independent Office Administrative Management Staff (AMS) and Executive Officers (EXOs). In an email attaching the furlough notice and Form SF-8, AMS and EXOs will be instructed to forward in electronic format using delivery receipt the furlough notices and Form SF-8 to individual non-excepted employees as quickly as possible on the day of the shutdown. AMS and EXOs will need to maintain copies of deliveries/receipt for the record. The responsible AMS office will be instructed to send a copy of the furlough notice and Form SF-8 to non-excepted employees who are not at work. Executive Officers should advise the Director, HCTM/Foreign Service Center (FSC) of the names of non-excepted employees on leave or travel in the U.S. who will not return to post within two weeks of the furlough. Executive Officers should also provide a contact or email address for these employees, and HCTM/FSC will attempt to forward the furlough notice and Form SF-8 to each employee. EXOs should confirm with each of these employees as they return to post that they have received notification of the furlough. If any employees are on temporary duty at other overseas posts, the EXOs should contact that Mission for assistance in delivering the furlough notice and getting an acknowledgement of receipt, citing this guidance in support of the request.

For other “non-excepted” employees who cannot be notified within two weeks due to lack of a contact or email address, the responsible AMS or EXO should advise HCTM/Civil Service Personnel or HCTM/Foreign Service Center of their names and their expected date of return to their Bureau/Independent Office or post of assignment. If possible, HCTM staff will try to locate these employees.

IV. Personnel

U.S. Direct Hires (USDH)

An immediate hiring freeze will apply during a lapse in appropriations.

Entry-on-board dates for prospective employees with employment offers will be suspended until the funding lapse is over. No new job offers may be made.

A review of the text of any subsequent appropriation or continuing resolution will be required to determine if Congress has authorized retroactive pay and allowances. All non-excepted personnel support activities should be suspended including unfunded security investigations.

Foreign Service Limited (FSL) positions: USDHs in FSL positions should check with their AMS or EXO on their status because FSL positions are funded from multiple accounts. Those program-funded FSLs who are initially paid from the OE account need their positions determined to be excepted or non-excepted, just like OE-funded USDHs.

Administratively Determined (AD) positions: USDHs in AD positions should check with their AMS on their status, as their functions would be evaluated in the same manner as other USDHs.

Direct-Hire Foreign Service Nationals (FSNs)

Under local labor law, if FSN personal services contractors or FSN direct hires are required to be paid, whether or not they work, they may work if they can be properly supervised or placed in the appropriate leave category. Supervisory American staff may not be justified as excepted employees merely because of their supervisory role; their excepted status must be independently justified. If supervisors are determined to be nonexcepted and FSN staff cannot operate without such supervision, FSNs must be placed on administrative leave/excused absence/other appropriate designation.

During any lapse of appropriations, Missions should obligate benefits and allowances (reference Emergency OE Obligations) for those FSNs who are required to work. However, any such obligations will be liquidated only after USAID receives a new appropriation covering their activities. Operating units should contact shutdown_info@usaid.gov to provide information about the nature and value of the obligation incurred.

U.S., Cooperating Country National (CCN and FSN) and Third Country National Personal Service Contractors (PSCs) should refer to Section IX on “Grants and Contracts.”

Fellows should refer to Section IX. on “Grants and Contracts.”

Participating Agency Service Agreement (PASA)

PASA employees must coordinate with their home Agency, in consultation with their current Operating Unit, to determine their excepted status.

Part-Time Employees

The number of furlough days for part-time employees are computed, based on work schedules, in the same proportion to those days scheduled for full-time employees. (The hours might be computed as a percentage of the work schedule for full-time employees.)

Intermittent and When Actually Employed (WAE) Employees

Intermittent and WAE employees are non-full-time employees without a regularly scheduled tour of duty and called to duty, as needed. Intermittent and WAE employees who are not non-excepted will be furloughed. If an intermittent or WAE employee is called into work during a furlough, it must be to perform excepted functions.

Employees on Alternative Work Schedules (AWS)

Employees under AWS would be furloughed for the number of hours they were scheduled to work on the days for which there was a lapse in appropriations.

Federal Employees on Detail

Employees detailed from (or to) USAID to (or from) another Federal agency who are performing excepted functions in their current positions are excepted. However, these employees should first coordinate with their home Operating Units (OU) in case they are needed to perform excepted functions there and to ensure compliance with home OU shutdown guidance. For more information and details involving non-Federal agencies, refer to OPM guidance.

Rotation of Personnel

Managers may rotate personnel to perform excepted functions. However, the following factors should be considered when making a decision on staff rotations:

a. Managers should take into account the impact the rotation schedule may have on unemployment compensation eligibility for the employee, based on local jurisdictions' unemployment insurance policies.

b. Decisions on rotations for specific positions should balance the Agency’s need for continuity and equity to the employees.

c. Managers should determine on what basis rotations will occur (i.e., daily or for longer periods), but due consideration should be given to continuity and fairness.

d. Personnel rotated into and out of an excepted function must have the requisite qualifications to perform the function.

Management decisions to rotate personnel into and out of an excepted function must be documented in writing and the information submitted to shutdown_info@usaid.gov. In the email, please use the following subject line, “CHANGE IN EXCEPTED LIST.”

V. Lapsed Funds

Should a lapse of appropriations occur, the Office of the Chief Financial Officer (M/CFO) will post the funds that have lapsed, are deemed to have expired, and will not be available for new obligations for the duration of the shutdown. The list of funds will be posted at the following webpage: https://www.usaid.gov/lapse-in-appropriations

The recording of a commitment prior to a lapse in appropriation has no impact on this prohibition; commitments against lapsed funds may not be obligated during a lapse of appropriations.

Once a shutdown occurs, the funds that have lapsed will be marked in Phoenix so as to prevent new spending. Upward adjustments to existing obligations that were recorded prior to the shutdown are permissible. Operating units must follow current procedures to request approval from M/CFO to record upward adjustments against the funds in the posted list.

Emergency OE obligations during a lapse of appropriations should be handled as outlined in Section X.

VI. Travel

All international travel, regardless of status (whether the employee is “excepted” or “exempt”), that is expected to commence on or after January 11, 2019 must be approved by the Bureau or Independent Office Head or the Mission Director. Operating units must send a copy of the travel approval to the M/AA Tasker at maataskermaillist@usaid.gov. This includes travel by U.S. direct hires and personal service contractors (including U.S., Foreign Service National, and Third Country National.)

Note: All in-country travel is exempt from this process.

U.S. Direct Hires

Official travel can be initiated after a lapse in appropriation only in fulfillment of excepted activities can be initiated after a lapse of appropriations, regardless of whether the employee had a funded and approved travel order prior to the lapse in appropriation. Official travel should be limited to that necessary for emergencies involving the safety of human life or the protection of property, or that necessary for the conduct of foreign affairs essential to national security. This may include, but is not limited to, attending significant bilateral or multilateral meetings; maintaining excepted post operations; disaster relief efforts, emergency visitation, medical, other ordered evacuation; or providing food, medicine, or other essential services to displaced persons. All travel authorizations must be approved by the Bureau or Independent Office Head or the Mission Director.

Permanent Change of Duty Station: Reassignment of personnel already planned may be continued, such as changes in posts of assignments, only if funds have been previously obligated.

Personnel in domestic or overseas travel status who are performing excepted functions may continue to do so. If personnel are in travel status at the time of the lapse but are not performing excepted activities, they should stop work and await further instructions. Because funding for overseas travel is obligated when the travel commences or when any cost was incurred for the travel (i.e., prior to the lapse) and because it is expected that any hiatus in funding will be temporary, personnel in non-excepted travel status should be instructed not to return immediately to their home duty stations. If such persons are not performing an excepted activity, they should be furloughed. Per diem will be payable on furlough days when in authorized travel status. However, salary will not be paid.

Training: Employees in training and on authorized travel orders should arrange to return to their regular work site as soon as informed by the Foreign Service Institute (FSI) or other training entity. On a limited basis, some training may continue if it otherwise pertains to the safety and security of personnel. Please refer to the Section VII. Training for USDH for additional information on this topic.

Personal Service Contracts (PSCs)

PSCs, including FSN PSCs, may continue with previously scheduled travel, including for training, as long as funds remain available for the travel, there remains work to be performed during the travel, and adequate oversight exists. Travel for PSCs that was not scheduled and authorized/approved prior to the lapse may not be processed due to the lapse in appropriations that affects personnel necessary to process any orders.

VII. Training for USDHs

In accordance with the Department of State’s shutdown plan, the Foreign Service Institute (FSI), FSI field offices, and all other domestic facilities will be closed, except those portions of the Diplomatic Security Training Center and FSI’s National Foreign Affairs Training Center campus housing employees performing excepted functions.

Crisis Management Training and Antiterrorism Assistance Training that has already started at overseas posts may continue if posts are open, subject to the approval of the Chief of Mission since this pertains to the safety and security of personnel. Domestically, the following courses will continue as scheduled since they pertain to the safety and security of personnel going to Afghanistan, Iraq and other posts of heightened danger: Afghanistan Familiarization (RS415); Iraq Familiarization (FT610); for those deploying to posts where it is mandatory, the Diplomatic Security Training Foreign Affairs Counter Threat Course (CT650); and Green Team Training and In-Service Training for Mobile Security and the High Threat Operations Course for Agents going to High Threat Environments.

Uniformed and non-uniformed personnel assigned to teaching positions at the War Colleges occupy positions that have historically been considered excepted by the Department of Defense during lapses in appropriation based on the direct connection between training senior leaders in DOD and the interagency and national security. In deference to this DOD legal opinion, and in order to maintain consistency across the executive branch, USAID personnel who are detailed to teaching positions at the War Colleges are considered excepted.

All other class attendance, domestically and overseas, will be suspended. This applies to all training, except as noted above, whether conducted by USAID employees or contractors. Other security-related training may be continued subject to the specific written approval of the Assistant Administrator, Bureau for Management.

Those domestic personnel in training who are designated as necessary to perform excepted functions should return to their positions. Those not so designated will be furloughed. Overseas personnel in a non-excepted status and in training in the U.S. will be furloughed. Personnel in domestic travel status who are not performing excepted functions should arrange to return or deploy to their duty site as soon as instructed by their operating units.

Similarly, employees enrolled in training conducted by entities outside the Agency should not attend class and should be treated as stated above.

See Section VI. Travel for questions regarding funding for personnel in long-term training.

VIII. Allowances

A. The following allowances to protect life and safeguard property will continue for all employees ordinarily eligible to receive such allowances, regardless of whether the position is “excepted” or “non-excepted”:

  • Housing and utilities abroad
  • Living Quarters Allowance
  • Post Allowance (COLA)
  • Home Service Transfer Allowance (HSTA)
  • Temporary Quarters Subsistence Allowance (TQSA)
  • Separate Maintenance Allowance
  • Subsistence Expense Allowance (paid in the event of an evacuation)
  • Extraordinary Quarters Allowance

B. Allowances for eligible persons in exempt positions will continue to be provided and paid during the lapse in appropriations, assuming adequate funding is available.

C. Allowances for persons in “excepted” positions will generally continue, except for Representation Allowances, which will not be paid, and as stated in C, below.

D. The following allowances are commonly funded in advance and may be provided regardless of whether the person is in an “excepted” or “non-excepted” position, provided funds were previously obligated and there are sufficient excepted staff to process the payment:

  • Education Allowance
  • Educational Travel will be provided only if it was obligated and approved prior to the lapse in funding or if it is necessary for human safety, e.g., if the school closes for a holiday and the students must vacate the dorm.
  • Travel of children of separated parents

E. The following allowances for persons in “non-excepted” positions will not be paid during a furlough:*

  • Post Differential
  • Danger Pay (We assume that all or nearly all positions at danger pay posts would be “excepted.”)
  • Representation Allowance

*The Agency, in coordination with the Department of State, is examining the text of the recently enacted Government Employee Fair Treatment Act of 2019, which provides for back pay, to determine if retroactive payment of allowances is payable

IX. Grants and Contracts

As the Government Accountability Office has long recognized, funding gaps due to lapses in appropriations raise particularly thorny issues in the area of contractual commitments, where generally applicable Anti-Deficiency Act requirements may be in apparent conflict with orderly shutdown activities and with continuation of excepted functions. The following guidance is directed toward providing a framework for consistent treatment of contract and grant commitments by Agency Operating Units that is consistent with the overall Agency shutdown plan and that will minimize ultimate costs and disruptions.

Existing Contracts

Please Note: During a lapse in appropriation, all Personal Service Contractors (PSCs) and Fellows should refer to this section of this guidance, under the sub-section on Personal Services Contractors.

Previously awarded contracts (including leases) that continue in performance during a lapse in appropriations and have adequate funding previously obligated to permit continued performance during a shutdown period should generally be permitted to continue unless the Operating Unit cannot provide “adequate oversight of contract performance” during a shutdown period or there is no need for the supplies or services during this period. If adequate monitoring of contractor performance cannot be provided, suspension or reduction in performance of non-excepted services should be considered if authorized by the terms of the contract. Care should be taken not to incur unnecessary costs or jeopardize the Government's future contractual rights by unilateral stop work orders or directions to reduce the scope of work that are not authorized by the terms of the contract or that will cause the contractor to incur costs that could subsequently be charged to the government. If circumstances require further guidance, consult the Contracting Officer (CO) or M/OAA with Office of General Counsel (GC) or the Resident Legal Officer (RLO).

Previously awarded contracts and leases that would, in the absence of funding, require renewal or modification during a lapse in appropriations to obligate additional funds for continued performance may be authorized to continue only if necessary to support excepted activities authorized for continuance under the Agency's shutdown plan or if genuinely needed to protect Government property or human safety. Before the CO may obligate additional funds under this circumstance, the Bureau Budget Office or Mission Controller (overseas) must certify that funds are available within the annual financial plan targets. Incurring unfunded obligations for such services during a funding gap does not violate the Anti-Deficiency Act, but payment of such unfunded obligations must be deferred until appropriations are provided by the Congress. See Section X - Obligations and Disbursements for additional certification requirements and further guidance on funding excepted contracts.

The chart found at Attachment 2 outlines the general process for determining whether to continue performance of an existing contract.

New Contracts

New contractual commitments (including leases) during a lapse in appropriations may be made only if necessary to support excepted activities authorized for continuance under the Agency's shutdown plan or if genuinely needed to protect Government property or human safety. The same principle applies to exercising options. Before making a final decision to not exercise an option that could expose the Government to delays or disruptions, the CO should consult with GC or the RLO. Before the CO may obligate additional funds under this circumstance, the Bureau Budget Office or Mission Controller (overseas) must certify that funds are available within the annual financial plan targets. Unfunded contractual commitments should be kept to the minimum in cost and duration that will meet the essential need. See Section X. Obligations and Disbursements for additional certification requirements and further guidance on funding excepted contracts.

Existing Grants and Cooperative Agreements

Recipients may continue their activities under an existing award, if they have adequate funding previously obligated. In order to incrementally fund an existing award, the following issues should be considered:

a. Does the award support activities that are authorized under the Agency’s shutdown plan, genuinely needed to protect Government property or human safety, or critical to the conduct of foreign affairs?

b. Does funding exist under an available appropriation to continue the activity?

c. Does the operating unit have adequate staffing to administer the activities during the shutdown?

Before the Agreement Officer may obligate funds under this circumstance, the Bureau Budget Office or Mission Controller (overseas) must certify that funds are available within the annual financial plan targets. See Section X Obligations and Disbursements for additional certification requirements and for further guidance on obligations and disbursements.

Under assistance awards, the Government generally cannot terminate for convenience but is not obligated to provide funding beyond the current obligation in the award. Should the Operating Unit decide not to continue funding, the Agreement Officer (AO) should notify the recipient that no additional funds will be provided at this time.

New Grants and Cooperative Agreements

Any new grants or cooperative agreements during the period of a lapse in appropriations, unless award of the grant or cooperative agreement is necessary to support emergency activities or is critical to the conduct of foreign affairs should not be awarded. Before the AO may obligate funds under this circumstance, the Bureau Budget Office or Mission Controller (overseas) must certify that funds are available within the annual financial plan targets. See Section X Obligations and Disbursements for additional certification requirements and for further guidance on obligations and disbursements.

All Personal Services Contracts

Positions that the Agency funds with multi-year or no- year appropriations (with remaining available balances), trust funds, and other permanent appropriations will continue as long as there is funding available and work to be performed. PSCs funded with lapsed appropriations may continue to work as long as sufficient funds are obligated to their contracts, and there is adequate supervision over the work. Note that leave for such PSCs remain governed by the terms of the PSC contract.

Temporary work stoppages of PSCs are accomplished through a partial termination for the convenience of the Government. A termination for convenience requires a minimum notice of 15 calendar days before it is effective. COs must notify PSCs of the partial termination of their contracts 15 days before funding will be exhausted under their award. If local labor laws prohibit placing a local hire PSC who would otherwise be furloughed in an unpaid non-work status, the PSC will be placed on administrative leave, i.e., excused absence, and notified that they will be paid as soon as funds become available.

X. Obligations and Disbursements

Dates in this section will be updated to reflect the actual date on which residual funding is insufficient to continue operations.

Obligations

Obligations Against Lapsed Accounts

During any lapse of appropriations, obligations may continue to be incurred for exempted and excepted activities. Bureaus, offices and missions must operate under strict constraints that ensure USAID complies with OMB and GAO guidelines. Specific guidance is as follows:

During a lapse in appropriations, USAID has legal authority to incur obligations to continue excepted activities. However, any incurred obligations funded with a lapsed appropriation should not be formally recorded (posted) in E2, GLAAS, and/or Phoenix. E2, GLAAS, and Phoenix have been configured to prevent obligations from being processed against lapsed appropriations. Posts should not de-obligate funds previously obligated prior to December 22, 2018 and re-obligate to new obligations after December 21, 2018.

Per OMB guidance, payments must not be disbursed against obligations incurred after the lapse began and funded with a lapsed appropriation. Disbursements may be made for obligations incurred before the lapse period and for which all necessary approvals have been recorded (in this case, on or before December 21, 2018); however, payment operations are not necessarily deemed essential just to meet payment terms. All obligations and obligating documents issued during the lapse period must be approved by the Mission Director, Assistant Administrator or Independent Office Director for each respective operating unit and the following statement shall be affixed and signed by the Mission Director, Assistant Administrator or Independent Office Director, as applicable: "This obligation is necessary to carry out excepted activities in the absence of an appropriation or to perform activities for which funds are otherwise available."

Bureaus, offices, and missions should maintain detailed records of all obligations incurred that cannot be recorded during the lapse period. In emergency cases involving the (a) safety of human lives, (b) the protection of U.S. government property, or (c) National Security, operating units may make manual obligations against lapsed funds during a lapse in appropriations. Operating units should first deal with the emergency and then contact shutdown_info@usaid.gov to provide information about the nature and value of the obligation incurred. Proper authorization for and documentation of any emergency obligation must be maintained, and obligations must be recorded in E2/GLAAS/Phoenix after Agency operations have resumed. Guidance pertaining to fiscal coding for emergency obligations will be provided once the lapse in appropriations has ended and should be recorded immediately.

Obligations Against Multi-year Accounts

During a lapse in appropriations, USAID may incur new obligations against multi-year appropriations that remain available that can be posted in E2/GLAAS/Phoenix along with any no-cost modifications consistent with this guidance. If the work to be performed for such actions with available multi-year appropriations is an excepted activity, excepted personnel may continue to work on such action without limitation. However, if the obligation against multi-year accounts is for a non-excepted activity, excepted personnel may only work on such actions on an intermittent basis. Posts should not de-obligate funds previously obligated prior to December 22, 2018, and re-obligate to new obligations after December 21, 2018.

Sub-obligations

During a lapse in appropriations, USAID may incur new sub-obligations under bilateral agreements. If the work to be performed for a sub-obligation is an excepted activity, excepted personnel may continue to work on such action without limitation. However, if the sub-obligation against multi-year accounts is for a non-excepted activity, excepted personnel may only work on such actions on an intermittent basis.

Disbursements

Authorized certifying officers may certify vouchers and authorize payments against valid obligations established against available prior-year annual, no-year or multi-year appropriations, and for FY 2019 obligations established before December 21, 2018.

Upon determination that a lapse in appropriation is imminent and furloughs may be executed, the M Bureau’s, Office of the Chief Financial Officer (M/CFO) will advance all approved and certified vouchers for payment, to the extent possible. Even though activities funded with a prior year annual, no-year or multi-year appropriation may continue during a furlough, OE- funded personnel required to process related payments are generally not considered excepted personnel unless the payments function is essential for the activity to continue. Certifying officers may not certify and authorize payments against USAID obligations incurred after December 21, 2018 (against a lapsed appropriation) unless specifically approved by the M/CFO, in consultation with the GC to determine if payments are necessary as excepted functions. While obligations or disbursements may be incurred for excepted activities funded by a lapsed appropriation, neither type of transaction may be recorded in USAID’s financial systems until the lapse in appropriations has ended, at which point it must be recorded immediately.

Specific Situations

The following are typical bureau/mission obligation/payment categories and how they should be handled (the dates below will be updated to reflect the actual date upon which residual balances are insufficient to continue operations):

LE Staff and FSN Pay/Allowances: Standard procedures to process Locally Engaged (LE) Staff payroll must be followed. Under no circumstances should alternate means be used to pay LE Staff and FSNPSC salaries, such as using petty cash. As per the above general guidance for obligations after December 21, 2018, no new obligations (from a lapsed appropriation) should be recorded, even for excepted activities. Guidance on submitting time and attendance during the period of the lapse will be provided prior to each deadline for the submission of time and attendance.

USDH Salaries, Benefits, and Allowances: While obligations can continue to be established for payrolls for persons performing excepted and shutdown activities, payments for salaries and allowances may only be made for services rendered through December 21, 2018. Payroll activities for salaries earned prior to the lapse in appropriation are deemed “excepted,” and therefore, payroll personnel will fully support payment of earned salaries prior to the appropriation lapse.

Travel: Only travel in fulfillment of excepted activities can be initiated after a lapse of appropriations. Per guidance above, even in cases of travel in this category, obligations funded by a lapsed appropriation should not be recorded in USAID’s financial systems. No travel advances may be issued unless the obligation for overseas travel was incurred prior to December 22, 2018. Travel voucher reimbursements can be processed against obligations incurred and recorded for prior years, or for FY 2018 (if obligated prior to December 22, 2018) multi-year or no-year appropriations for which funds remain available; however, such processing shall not be an excepted activity.

Travelers who hold Citibank Travel Cards (including the Declining Balance Cards) may charge advances against these cards for any approved trips as travel card advance charges do not create advances to official accounts. As part of GSA Smart Pay cards, Citibank Travel Cards will continue to function normally and banks will continue to provide service. Cardholders, as usual, should contact the bank customer service organization should they experience problems with their cards.

Utilities: As with other categories of payments, utility payments for obligations established prior to December 22, 2018, may be processed for payment. Obligations funded by a lapsed appropriation and for utility costs after December 21, 2018, should not be recorded in the USAID accounting system. Payments against these obligations cannot be made until the lapse in appropriations has ended and the obligation has been recorded. Missions confronted with emergencies in this regard should contact shutdown_info@usaid.gov to provide information about the nature and value of the emergency..

Representation: Representation events are not authorized after a lapse of appropriations.

Purchase Orders: Generally, purchase order obligations and payments are to be governed by the above guidance. Obligations for purchase orders prior to December 22, 2018 should have been recorded.

Petty Cash Payments: Similar guidance applies to all categories of miscellaneous petty cash payments. A voucher can be paid if the obligation supporting it was incurred prior to December 22, 2018. For example, a petty cash reimbursement for taxi fares incurred prior to December 22, 2018 can be paid. No petty cash reimbursement can be made for taxi fares or other· purposes incurred after December 21, 2018 unless against an available multi-year or a no-year appropriation. The absence of appropriations does not affect accommodation exchange.

Collections: Embassy cashiers can continue to process all collections as usual. Certifying Officer Responsibility: Post Financial Management Officers (FMOs) have the responsibility to ensure only authorized obligations are recorded and only payments against authorized obligations are certified for payment. Posts should not de-obligate funds previously obligated prior to December 22, 2018 and re-obligate to new obligations after December 21, 2018.

Absolutely Necessary Payments: USAID has authority to incur some types of obligations during the lapse period. If such obligations require special payment handling during the lapse period, a special request and justification should be coordinated with the shutdown_info@usaid.gov and the M/CFO. The information provided should include the nature/description of the activity and value of the payment, at a minimum.

Emergency Medical Services: If the concurrence of Department of State Office of Medical Services (MED) is received, emergency medical travel and services obligations can be incurred. If they are funded with a lapsed appropriation, they must not be recorded in the Agency financial systems and must be sent to shutdown_info@usaid.gov with information about the nature and value of the emergency. Payments may be made only in consultation with M/CFO. Please coordinate with MED and follow their guidance in emergency situations where payment is required immediately. For medical services funding requests, the post should cable MED and coordinate with the shutdown_info@usaid.gov and M/CFO.

XI. Time and Attendance Reporting

Reporting Hours During the Furlough Period for USDHs

Final instructions for recording time and attendance for USDHs affected by the lapse in appropriation will be provided to AMS officers and EXOs as soon as the Agency’s payroll provider announces the instructions.

U.S. direct-hire employees funded with lapsed appropriations must be either: (1) at work performing excepted activities, or (2) furloughed. They, therefore, cannot be in a paid leave status (i.e., annual leave, sick leave, other paid leave, or using earned compensatory time off) during that period.

XII. Outside Activities

Public Affairs Activities

If you are on excepted status, you can attend only on an exception basis. Contact the Bureau for Legislative and Public Affairs (LPA) to request approval to attend. No speeches to public audiences may be made during the shutdown period without explicit approval from the SDAA/LPA.

Outside Employment

While on furlough, an individual remains an employee of the Federal Government. Therefore, executive branch-wide standards of ethical conduct and rules regarding outside employment continue to apply when an individual is furloughed (specifically, the executive branch-wide standards of ethical conduct (the standards), at 5 C.F.R. part 2635). USAID employees based in the United States need to seek approval for outside employment only if the employment could pose a conflict of interest with the employee’s USAID position by emailing Shutdown_info@usaid.gov. Uniform/Foreign Service rules governing employment abroad are contained in 3 FAM 4123 and 3 FAM 4126. Individuals overseas seeking employment must consult with your respective RLO. All overseas employees engaged in outside employment must report that outside employment to SEC at secreporting@usaid.gov and obtain Chief of Mission approval, as appropriate.

XIII. Representation Events

As a general rule, no representation events should be held during the shutdown period. Events already scheduled should be cancelled and no new events planned until the shutdown is over. In exceptional cases, Mission Directors, in coordination with the Chief of Mission, may authorize a representational event overseas only if it is necessary to support excepted activities. Mission Directors should consider the perception of a representational event during an Agency shutdown.

Date 
Thursday, December 20, 2018 - 3:00pm

Last updated: January 18, 2019