GAO recommends how agencies could operate during shutdown

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Agencies in recent years have faced a recurring dilemma: Congress can’t act on time, so there’s a lapse of appropriations – a partial shutdown. Yet they have to continue to operate at some level. Sensing this could happen again, the Government Accountability Office looked at four agencies’ shutdown planning and came up with some recommendations. The GAO’s Director of strategic issues Jay McTigue provided more details on Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Mr. McTigue, good to have you back.

Jay McTigue: Thank you for having me Tom.

Tom Temin: So the dilemma is they have to spend money to operate cause nothing operates free, and yet they don’t have the appropriations and so they can get into trouble on a lot of fronts. Tell us the agencies you looked at and what some of the good planning processes are.

Jay McTigue: Absolutely, Tom, as you know, agencies really cannot operate without funding from Congress. And if Congress fails to pass appropriations on a timely basis, there is a funding gap or lapse in appropriations and agencies must shutdown, otherwise violate the what is called the Anti Deficiency Act, which basically says if you don’t have money from Congress, you can no longer operate, with the exception of activities which either involve emergencies related to the safety of human life, or the protection of property or having to deal with carrying out core constitutional responsibilities. Therefore, it is important for agencies to have contingency plans in place ready to go in situations as we experienced in fiscal year 2019. We did review four agencies, the four agencies that we looked at were the US Customs and Border Protection, the Internal Revenue Service, the International Trade Administration, and the Office of the US Trade Representative. While the experience of these four agencies are not generalizable, they do reflect a variety of size, funding type, activities that serve as illustrative examples of the range have experiences that other federal agencies may experience. GAO looked at OMB guidance for agency contingency plans and other documentation. Each of the plans that we did review generally followed what OMB has put out in terms of guidance, but each agency could improve their contingency planning for prolonged shutdown scenarios, and strengthen some internal controls. And as you mentioned, while shutdowns are not common, they do happen. And in fact, over the past seven years, we’ve had three shutdowns, and two of these three shutdowns have lasted much longer than five days. The most recent was five weeks, before that we had one in 2014 that lasted about two and a half weeks.

Tom Temin: What are the elements of a good plan and did these agencies follow them? You said they generally followed OMB advice, but what is really outside of what the White House says what is good planning in general for this type of contingency?

Jay McTigue: Absolutely. So agencies should follow and develop contingency plans that align with the OMB guidance. The OMB guidance is found in Circular A11. And just to give you an example, the guidance covers or requires summaries of activities that will continue and those that will cease during the shutdown. It also covers the time needed to complete an orderly shutdown, as well as the number of employees that would be on board prior to shutdown and then during a shutdown. Our report actually identified 14 key information elements from the guidance that agencies should address in their contingency plans. Essentially, agencies could use these elements that we identified kind of as a checklist in developing and assessing their own contingency plans

Tom Temin: And these agencies that you looked at, the Internal Revenue Service is part of Treasury, US Customs and Border Protection is part of Homeland Security. What about the relationship with the greater department and some of these large components? How does that interplay come to the fore here?

Jay McTigue: Oh, absolutely, that’s a that’s a great question. Basically, it varies across the board. Some departments such as the Department of Homeland Security, has an agency or department wide contingency plan. In the case of IRS within Treasury, IRS has its own separate contingency plan, given its size and range of activities that are perform. The Office of the US Trade Representative, which is a very small operation in the Executive Office of the President, again, does not have its own plan, but has input into the plan devised by the Executive Office of the President. To the extent to which the plans actually adhere to the OMB guidance varied. We didn’t see a correlation with the structure in terms of department versus sub-unit — and that’s why we say the the results are not generalizable across the board.

Tom Temin: When you mentioned that a lot of the components and I guess agencies in general, this is an ongoing problem, lack sufficient internal controls, does that mean they don’t know what money they might have around to be able to spend for these contingencies?

Jay McTigue: That’s certainly part of it, but also it’s broader. Internal controls are basically management controls, so it includes controls over dollars, but it also includes controls over other resources such as staff and facilities. So for example, in the report, we talked about how one of the areas that all four agencies were lacking in terms of their internal controls were controls over access to both physical and virtual workspaces. And that’s important because if employees can access these facilities, in essence they could be using federal resources, which the agency does not have the authority to expend. And also it speaks to protecting the federal resources as well.

Tom Temin: It sounds like one of the things they need to have in place in that plan is precisely what activities are essential to health and safety or to the Constitution, and which are not — like acquisition of a new printer or something.

Jay McTigue: Absolutely. Sometimes it’s black and white, what is and what isn’t what they call “accepted,” which means allowed to continue. But other times, you know, it can be a gray area. As you point out, that is why it’s particularly essential to make these determinations ahead of time. And of course, depending upon the length of a shutdown, those plans can be revisited, reevaluated as situations change, events occur. So it’s not necessarily a fixed document that cannot be changed.

Tom Temin: Should agencies have the contingency plans pretty much on an annual basis now, because, as you mentioned, three out of seven years, and on the other four years, it came darn close?

Jay McTigue: Unfortunately, that is true. But I guess the good news is agencies are required to have plans on a standby basis — and to the extent that agencies do update these plans on a regular basis, unfortunately, they have come into play more often than perhaps we’d like to see.

Tom Temin: One failing that all four of the agencies had in common was their control of access to virtual workspaces. Now, given that the mass telework has happened and agencies have done a lot of technology and managerial backfilling to accomadate it, maybe if you looked at it again, that could be in place at all those agencies.

Jay McTigue: We would certainly love to see that happen. We do have a recommendation to each of the four agencies that they implement controls over their virtual workspaces. And you’re absolutely right, as we move through the pandemic, or just move toward a future where more people may be working remotely, it becomes more and more important that if Congress does not appropriate the funding necessary to continue operations that, operations do come to a halt in an orderly basis — and part of that is having those controls in place over both the physical and the virtual workspaces.

Tom Temin: Will you be looking at some of the large departments at that level with the same questions?

Jay McTigue: We currently do not have any future work plan, but again, given future events, we very well could be called back to look at other agencies and departments as well.

Tom Temin: Jay McTigue is Director of Strategic Issues at the Government Accountability Office. Thanks so much.

Jay McTigue: Thank you Tom. Great to be here.

Check out the Government Accountability Office’s report here.