Defense Department Comptroller Robert Hale told the House Armed Services readiness subcommittee that the Pay Our Military Act (POMA) language was “difficult to interpret,” particularly as it relates to allowing for contractors to be paid during the ongoing government shutdown, as well as which civilian employees are deemed to be included under the law.
In a hearing with several tense moments between lawmakers and the panel of DoD witnesses, the implementation of POMA came down to the interpretation of who was “providing support to members of the Armed Forces,” as the law is worded.
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| Defense Department Comptroller Robert Hale. Photo courtesy of DOD |
Rep. Mike Coffman (R-Colo.), the author of the bill, argued there never should have been any furloughs of civilian workers or disruptions in the work of contractors. POMA was passed unanimously by the House and Senate and signed by the president on Sept. 30, before the shutdown began, meaning there was never actually a lapse in appropriations for DoD. He added that Congress was clear that its intent was to cover all DoD employees–uniformed, civilian and contractor.
But Hale argued that the vagueness of the language–who is and who isn’t “providing support” to servicemembers–meant the department had to spend several days parsing through the law with its lawyers and the Department of Justice to determine how to legally implement it.
“This process of categorizing civilians was difficult, it was time-consuming, and it was hurtful to those who remain on furlough,” Hale said. He emphasized that “DoD followed the law and the guidance in it,” though several lawmakers accused him and DoD leadership of seeking political gain by inflicting maximum pain on the department in its strict interpretation of the law.
Most complex, Hale said, is the section of the law dealing with contractors, which allows DoD to appropriate “sums as are necessary to provide pay and allowances to contractors of the Department…whom the Secretary concerned determines are providing support to members of the Armed Forces.”
“This provision of POMA was especially difficult to interpret because almost all contracts are designed to buy goods and services and almost all of them contain more than pay and allowances: they contain profit, overhead, materiel, supplies,” Hale said. “So we’re having to try to separate those out, and it’s extremely difficult to do. We’re still working on a determination of how to apply POMA to contracts using fiscal year ‘14 funds.”
As for signing new contracts for fuel, food, supplies and more for “excepted activities”–military operations and basic base operations–Hale noted, “even if we can enter into contracts for excepted activities, we can’t pay the vendors with fiscal year ‘14 funds, we have no legal authority to do that. We’re not sure how long our vendors are going to accept IOUs.”
Hale added after the hearing that he was not aware of any contractors who had already told DoD they wouldn’t accept an IOU, but that he worried some would rethink their business agreements if the shutdown continued too long, particularly the smaller vendors.
To help address some of these industry concerns, Hale said DoD acquisition chief Frank Kendall is reaching out to business associations and individual vendors to try to keep acquisitions running as smoothly as possible for government and companies during the shutdown.
With POMA implemented, only about 7,000 DoD civilians remain furloughed, and those personnel perform functions related to audits, public affairs, legislative affairs and other similar jobs. DoD acting general counsel Robert Taylor, after several lawmakers questioned why those employees were not considered to be “providing support,” said that essentially those employees support the department but not individual servicemembers.
About 35,000 more civilians in the Army Corps of Engineers are not covered under POMA but are continuing to work with remaining FY ’13 funds, which will run out soon. Those workers would be furloughed if funding runs out before the government shutdown ends, Hale said.