The issue of back-pay for contractors left high and dry by the 35-day partial government shutdown failed to make the cut in the Consolidated Appropriations Act legislation to be considered as soon as today by the House and Senate.

The bill, which would fund government operations through Sept. 30 if approved by both legislative bodies and signed by President Trump, would avert another partial Federal government shutdown that could hit as soon as Feb. 15.

Back pay to compensate private-sector contractors whose work was interrupted by the 35-day partial shutdown that began on Dec. 22 was reported to be a major sticking point in discussions by a House-Senate conference committee tasked with crafting compromise appropriations legislation to keep agencies running and to satisfy President Trump’s demand for border wall funding.

While Congress and the White House agreed to guarantee back-pay for Federal workers hurt by the shutdown, legislative efforts to address the same issue for contractors didn’t make it that far.

Mike Hettinger, managing principal of Hettinger Strategy Group, told MeriTalk today that contractor back-pay is “a dicier issue” because under Federal rules “you can’t pay someone for work they didn’t do.”

Complicating the issue is the varying nature of private sector contracts with the Federal government, including contracts that have fixed prices, and those that involve time and materials on an ongoing basis. In the former case, performance under those contracts may merely be delayed by a shutdown, but in the latter case, services contracted – such as cleaning and food services – may depend on Federal agencies remaining open to receive the services.

Hettinger recalled several previous Federal government shutdowns – including a 16-day shutdown in 2013 estimated to have cost contractors $20 billion – but said he could not recall one that had provided for contractor back-pay.

Because of those and other thorny issues, “it remains difficult to put [contractor back-pay] into legislative language,” he said.  Ultimately, that degree of difficulty could have been one item that the White House in particular didn’t want to deal with under the tight deadline of avoiding another partial shutdown as soon as tomorrow, he noted.

Hettinger added that attempts to legislate some kind of relief for contractors “could come back” in front of Congress, as “there seems to be some support” on Capitol Hill for helping them.

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