Lessons from Shutdown '95

Wednesday - 3/2/2011, 10:41am EST

John Cooney, attorney, Venable LLP

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By Suzanne Kubota
Senior Internet Editor
FederalNewsRadio.com

The last time there was a governmentwide shutdown, John Cooney worked for the Office of Management and Budget as the General Counsel.

Now a partner with the Venable Law Firm, Cooney looked back to 1995 and told Federal News Radio, there are two critical differences this time around.

"The legal advice on which the shutdown process is organized and on which the '95 - '96 shutdown was run assumed that services would be delivered by federal civil servants and that contractors would provide products - tanks, printing paper. The model has changed quite significantly since then. There are many more contracts by which services are now delivered by outside contractors." As a result, said Cooney, "the agencies are having to determine how to take into the account the effect of a potential shutdown on their contractors."

The second major change, said Cooney, "is the internet revolution has happened since the '95 - '96 shutdowns. So much of the interaction between the public and the federal government now is done through internet based communications. I'm certain when the IT contracts were let to support those internet sites, no one ever thought about whether the functions or system support would be exempt or non-exempt in the event of a shutdown. So undoubtedly the agencies are having to go through a process of trying to figure out what a site supports."

As we talked about yesterday on the Federal Drive, contractors are also concerned about a shutdown. Cooney said that's completely understandable. "It's an inherently frustrating situation because there may be no clear way to get an answer to what the contractor should be doing. And if the contractor doesn't know what it should be doing, it can't really advise its employees."

On the list of things to do, said Cooney, now is the time for contractors to set up communications systems to be able to notify employees "very quickly when they finally get instructions from the agency."

Part of the problem, said Cooney, is that "agencies are continually juggling in their own minds whether a particular function may continue because it depends upon the threat that the agency faces." For example, said Cooney, two months ago the State Department probably would not have thought it would need contractor help evacuating American citizens from the southern shore of the Mediterranean, "but that would be a priority today."

The bottom line now as then, said Cooney, when agencies are deciding which positions are covered "the most important one is the protection of human life and property in the case of a shutdown." Agencies, said Cooney, "have wide running room as to how they interpret that."