NASA Has Cancelled Constellation Contracts Since The President’s Proposal Was Announced

WASHINGTON, D.C. – Congressman Robert Aderholt (R-AL) on Friday wrote a letter to the Government Accountability Office (GAO) asking for an investigation into whether NASA’s actions regarding the Constellation program, as well as the extent to which it is working on a new, unauthorized plan, violates law.

On February 1, 2010, the President Obama Administration announced its FY2011 Budget, which proposes to eliminate the NASA Constellation program. Since that time, NASA has cancelled or put on hold numerous contracts which were a part of the regular, FY10 work for the Constellation program, despite the fact that Congress must first approve its termination before it becomes final policy.

According to the FY2010 “Consolidated Appropriations Act of 2009” (H.R.3288), which passed the House on December 10th , the Senate on December 14th, and signed into law on December 16, 2009, NASA cannot terminate the current Constellation program, without Congress passing law to provide or end funding for such programs.

The exact language of the bill reads, “…none of the funds provided herein and from prior years that remain available for obligation during fiscal year 2010 shall be available for the termination or elimination of any program, project or activity of the architecture for the Constellation program nor shall such funds be available to create or initiate a new program, project or activity, unless such program termination, elimination, creation or initiation is provided in subsequent appropriation Acts.”

This language requires the Administration to wait for Congressional approval prior to changing any plans to Constellation. Since the “initiation” of a new plan is also prohibited, Congressman Aderholt’s letter also raises the question of whether the use of staff time represents an initiation of a new plan rather than simply planning activities.

Since the announcement of the President’s proposal to end human space flight, Congressman Aderholt has worked with a bipartisan group of lawmakers to stop the plan and hold the Administration accountable to its activities relating to NASA and any policy change.

On February 12th, Congressman Aderholt was joined by 28 House lawmakers in asking NASA Chief Charles Bolden to confirm or deny reports that NASA was prematurely beginning the process of ending the Constellation program, and raised the issue of whether NASA’s refusal to spend FY10 funds on the Constellation program represents a violation of law (the Impoundment Act). On February 24th, Congressman Aderholt pressed President Obama’s top science and technology advisor, Dr. John P. Holdren, during an Appropriations subcommittee, on the Administration’s plan to end Constellation. Aderholt will have the opportunity to directly address NASA Administrator Charles Bolden, as he is expected to testify before the House CJS Subcommittee on Appropriations the week of March 22nd.

Congressman Aderholt’s Friday request for investigation is specifically addressed to GAO Comptroller General Mr. Gene L. Dodaro. The Government Accountability Office (GAO) is the nonpartisan audit, evaluation, and investigative arm of the United States Congress.

Congressman Aderholt serves on the powerful House Appropriations Committee, as a member of the Commerce, Justice and Science Subcommittee, which is responsible for funding NASA.

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The full letter and list of co-signers is below.

Co-Signers:
1. Rep. Robert Aderholt (R-AL)
2. Rep. Parker Griffith (R-AL)
3. Rep. Spencer Bachus (R-AL)
4. Rep. Jo Bonner (R-AL)
5. Rep. Mike Rogers (R-AL)
6. Rep. John Culberson (R-TX)
7. Rep. Suzanne Kosmas (D-FL)
8. Rep. Ralph Hall (R-TX)
9. Rep. Bill Posey (R-FL)
10. Rep. Pete Olson (R-TX)
11.Rep. Kevin Brady (R-TX)
12. Rep. Jason Chaffetz (R-UT)
13. Rep. Ken Calvert (R-CA)
14. Rep. Gene Green (D-TX)
15. Rep. Steve LaTourette (R-OH)
16. Rep. John Fleming (R-LA)

March 12, 2010
The Honorable Gene L. Dodaro
Acting Comptroller General
441 G Street, NW
Washington, DC 20548

Dear Acting Comptroller General Dodaro:

We are writing to ask that you investigate NASA’s actions with regard to the attached bill language from the Consolidated Appropriations Act of 2009. We seek your legal opinion as to whether NASA has complied with the language.

As you can see, the language both prohibits the termination of programs, projects, and activities which are part of the Constellation program, and it also prohibits the initiation of those actions with regard to new programs. The programs in question are part of the Exploration account. For the Constellation programs, our questions center on what actions NASA has taken with regard to current contracts, but perhaps even more importantly, contracts which were a planned part of Fiscal Year 2010 progress. While the word contract does not appear in the bill language (it is in the report language), this question naturally occurs: to what extent can planned contracts be cancelled, suspended, or slowed and the agency still be considered to have not terminated the program? NASA has of course announced its intention to cancel Constellation. We believe that interpretation of this bill language should take into account the fact that these activities are not easily stopped and started but rather are long-term contract plans (as long as 36 months out) involving highly specialized engineering teams both in government and in the private sector.

Secondly, NASA is instructing its employees to conserve FY10 funds, and is referring to the Anti-Deficiency Act as a legal requirement that they do so – because of the President’s intention to cancel Constellation. We believe that this act does not apply to the situation, particularly given the fact that Congress has specifically forbidden the termination not just of the program, but of programs and activities. Congress, therefore, not NASA, is responsible for contract shutdown costs and will provide them – in FY11, in the event that Congress approves the President’s plan in whole or in part. Furthermore, we wish you to investigate whether NASA is in fact violating the Impoundment Act by withholding FY10 funds rather than proceeding with contracts which represent a normal schedule of FY10 activity implied by Congress’s refusal to allow NASA to terminate the Constellation program. (In essence, a complicated engineering program like this is either allowed to proceed according to its contract schedule, or it is in effect, terminated).

Thirdly, and finally, NASA seems to be using quite a few employees to work on the new plans. This work may be far more extensive than simply discussing options and plans. Rather, senior-level program personnel seem to be spending all of their days on the new plans instead of on the Constellation programs, projects, and activities which are their jobs (according to the FY10 bill language). As of today’s date, NASA had not provided an answer to Congressional staff inquiries submitted on February 22 asking who is working on the new plans, how much of their work day those assignments represent, and from what payroll account they are paid. This last point is important since it is unlikely that there is substantial payroll funding leftover from previous fiscal years. If NASA’s actions do indeed comprise the initiation of a new program, and FY10 funds are being used to pay those personnel, NASA is in violation of the bill language and these planning activities must stop immediately. We ask that you put a high priority on this matter and ask that you report on it first, separate from the other aspects, with the goal of a conclusion in approximately 60 days, as opposed to the typical 100 to 120 days required.

Thank you for your consideration. We look forward to your reply.

Sincerely,