WASHINGTON, D.C. – Senator Kay Bailey Hutchison (R-Texas), Ranking Member of the Senate Commerce, Science, and Transportation Committee, today said NASA leadership was skirting the law to shut down the Constellation program after NASA leadership publicly announced a decision to reprioritize work on the program. NASA’s stated justification for these actions is the Anti-Deficiency Act (ADA), which prohibits spending funds beyond levels that are appropriated in a given year, or obligating the government to pay money before funds have been appropriated. There are a number of unanswered questions on whether the ADA would apply in this situation, and if it did, the recently passed Defense Supplemental legislation clarifies that regardless of any provision of law, work must continue on the Constellation program.

“While Congress considers the President’s Budget request, the Constellation program remains the law of the land and we have repeatedly affirmed that Constellation work should continue unless Congress approves a different program,” said Senator Hutchison. “For months, NASA’s leadership has claimed they are not working to subvert Constellation despite information to the contrary. This includes letters sent from the agency to contractors about their termination liability, internal direction given to agency personnel to give ‘lowest priority’ to spending that does not fit into the President’s proposal, and the recent reassignment of the Constellation program manager, who was reported to be working on plans to continue implementation of the program of record.”

“All of these are deeply troubling developments, but perhaps the most disturbing evidence that the Administration is motivated to subvert the Constellation program and effectively burn the bridge to the program is found in the timing of this public announcement and the argument used to justify it,” Senator Hutchison said. “Two weeks ago, the Senate passed a Defense Supplemental spending measure with language requiring NASA to continue work on the Constellation program unless Congress directs otherwise. This language clearly affirms Congressional direction that work should continue. This measure is expected to reach the President’s desk before the end of this month. The timing of NASA’s decision to push forward with these actions now, before this becomes law, rather than working with Congress to identify ways to mitigate uncertainty and allow workers to remain on the job is highly questionable.”

Senator Hutchison today received a letter from NASA Administrator Bolden outlining the decision and NASA’s justification. She noted that it further underscores the extent to which NASA has taken aggressive steps to move in a different direction without providing ample explanation or justification to Congress. The letter from Administrator Bolden contains language discussing the new “principles” to guide spending that are virtually identical to direction reportedly given by NASA headquarters in an email to the now reassigned Constellation program manager more than three weeks ago. The email with these operational instructions has been provided to the NASA Inspector General as part of the investigation Hutchison requested with Chairman Rockefeller into the reassignment of the Constellation program manager.

“At best, this demonstrates that, at least three weeks before briefing members of Congress about issues related to funding challenges, NASA’s leadership had already taken steps to implement a course that today leads to the loss of hundreds, perhaps thousands, of jobs,” said Senator Hutchison. “At worst, it shows an agency that is willfully subverting the repeatedly expressed will of Congress. In either case, the result is the same. The leadership of the world’s preeminent space agency has strained its credibility to the breaking point and something has to change.”

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Senator Hutchison is releasing a copy of the internal email and the letter from Administrator Bolden.

From:
Sent: Friday, May 21, 2010 8:41 AM
To: Hanley, Jeffrey M. (JSC-ZA111):
Cc: [Names Redacted]
Suject: Guidance

Jeff,

This is the guidance we have worked through review and through Charlie Bolden. It is what you and I have discussed already.

We should apply this as you have to manage through the actions the contractors will be taking.

We are going to need daily updates from you on any actions taken, so that we can keep our stake holders informed through the responsible offices at HQ.

Guidance:

In re-planning CxP work for the remainder of fiscal year 2010 in order to accommodate budget shortfalls, some tasks will have to be postponed or reduced in scope. In making these decisions, ESMD and CxP managers should follow these principles:

1. Maximize retention of personnel/skills and capabilities that can contribute to future technology development. Also, try to protect advanced development work that could transfer to FY 2011 programs as requested in the FY 2011 Budget.

2. Enable – to the extent possible — a robust transition to work associated with a crew Escape Vehicle (as announced in the President’s April 15th speech) as the highest funding priority; and enable work to continue on J2X, as the second funding priority.

3. Place the lowest priority on expenditures for hardware that can solely be used for the program of record and are not applicable to the requested programs for FY 2011.

4. In so. doing, if possible:

a. Re-plan ARRA funds towards the priorities above;

b. Avoid actions that would require op plan changes; and

c. Avoid NASA directed terminations.