Scott Flesch and Jason Workmaster were quoted on the need for government contractors to be diligent about record-keeping during the current federal government shutdown, documenting any costs incurred for project delays, stop-work orders, and other interruptions to their work. Contractors should have been looking at their contracts to confirm whether they're fully funded or incrementally funded, Workmaster said. Companies with contracts that fall into the latter category are at risk of running out of funding, which can't be replenished until the government reopens. Prime contractors should also be taking a close look at their subcontracts to make sure that if the government does suspend work on the principal contract, they are also able to tell their subcontractors to stop, Workmaster said, adding that contractors performing work that is more dependent upon engagement with government officials are more likely to encounter stop-work orders. "What you don't want to see in those subcontracts is that you haven't reserved the right to tell your sub to stop working, and they can just keep working and keep billing you without you having really any recourse," Workmaster said.

Flesch, who was previously head of the U.S. Army's contracting litigation office, said the shutdown is also going to have an impact on contractors' ability to protest contract solicitations and awards, particularly at the U.S. Government Accountability Office (GAO), which announced Wednesday its electronic protest docketing system is shut down as a result of the lapse in appropriations. Without this system in place, contractors are no longer able to file a protest at the GAO, where they would typically be able to receive an automatic stay of award or contract performance under the Competition in Contracting Act — raising the question of what happens to contracts that would otherwise be challenged at the GAO and paused. "Agencies may choose to voluntarily stay because of this gap in the law and procedure, the [U.S.Department of Justice] may also convince agencies to voluntarily stay to address this gap, but it is an unknown whether agencies will automatically apply a stay in the award or performance without being notified by GAO that a protest has been filed," Flesch said.