WASHINGTON — U.S. Sen. Barbara Mikulski (D-Md.) is urging top White House officials to stop NASA from forcing contractors to slow or halt work on the agency’s Moon-bound Constellation program in order to preserve enough money to cover the cost of shutting down the project as soon as this fall.

“I am advised that NASA has undertaken a series of steps to direct industry to retain certain funds made available in fiscal year 2010 to cover prospective termination costs so as not to potentially violate the terms of the Antideficiency Act,” Mikulski wrote in a May 10 letter to White House budget chief Peter Orszag. Mikulski, who chairs the Senate Appropriations subcommittee that oversees NASA spending, gave Orszag until May 25 to review NASA’s contract termination liability practices and develop a detailed plan to implement and pay for a new standard “to deal fairly with industry.”

Mikulski also asked Orszag to “direct NASA to withhold any further action regarding termination liability obligations until we resolve this matter.”

President Barack Obama’s plan to pull the plug on NASA’s Constellation program after five years and more than $9 billion worth of investment in the space shuttle replacement and lunar exploration effort has drawn bipartisan opposition from Congress. Lawmakers have pointedly reminded NASA that a 2010 appropriations bill enacted late last year prohibits the agency from using current-year funds to shut down any part of Constellation without congressional approval.

NASA Administrator Charles Bolden has repeatedly told lawmakers the agency is complying with the 2010 law, but must also abide by the much older Antideficiency Act, which requires NASA to ensure that its contractors do not overspend the $3.5 billion Congress appropriated for Constellation in 2010.

As a result, some contractors have slowed or stopped work on Constellation subcontracts in order to set aside program money to cover their termination expenses when NASA formally issues the shutdown orders.

In the letter, Mikulski said she is “deeply troubled” by NASA’s approach to termination liability, and that the agency’s “current actions toward industry have not been well received both by the contractor community and Congress.”

She said that while NASA’s current approach to termination liability may “follow the letter of the law, it is not clear that this approach has been NASA’s historical practice.” Mikulski said it is neither fair nor appropriate for agency officials to “change their binding legal approach to such an important matter” without careful review by an independent third party.

“I urge you, in conjunction with the Vice President and the President’s Chief of Staff, to immediately devise a path forward to avoid canceling contracts in fiscal year 2010 and to avoid invoking termination liability set asides from existing contract dollars and activities on the Constellation Program,” Mikulski wrote.

Mikulski said Congress’ intent in passing the 2010 appropriations legislation was to allow NASA to continue work on Constellation while lawmakers took time to review Obama’s proposal to overhaul NASA’s human spaceflight program.

“Any changes to the program will require careful transition in order to ensure that our aerospace workers, our astronauts, and the taxpayers know the path from the current program to any new program, including the impact on thousands of jobs in communities throughout the country,” she wrote. “It also compounds lingering agency morale concerns in the human space flight enterprise at a time when the Shuttle program is ending and attention to safety should remain paramount.”


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