U.S. Congress’ Confusion over NASA Authorization Act Fuels Legal Study

[Satellite News 12-03-10] While the recently enacted NASA Authorization Act of 2010 provides the agency with much-needed support to reduce acquisition risks and implement new ways of conducting future operations, the bill, signed into law in October, also continues restrictions written in NASA’s fiscal year 2010 Appropriations Act, which motivated the U.S. House of Representatives to seek legal advice from the U.S. Government Accountability Office (GAO) over the past summer, the GAO said in a statement released Dec. 2.
    The 2010 Appropriations Act prohibits NASA from terminating any program, project, or activity of the Orion constellation program or creating new ones until provided for in a subsequent appropriations act. Congress requested GAO legal opinions about whether NASA’s actions related to the Constellation program complied with restrictions in the 2010 Appropriations Act and what steps NASA should take to increase the likelihood of success as it implements its new direction.
   “Space projects drive critical innovation in and understanding of space, but our work has shown that most cost more and take longer to develop than planned. Today’s fiscal environment highlights why that pattern is unsustainable, now more than ever,” the GAO wrote in their report. “The continuing resolution continues the restrictions of the 2010 appropriations Act. Therefore, NASA must carry out the recently enacted Authorization Act but without terminating or creating programs, projects, or activities of the Constellation program. In recent legal opinions, GAO found NASA had not violated any restrictions of its 2010 Appropriations Act.”
   The GAO found that NASA did not violate the restriction prohibiting it from using funds to begin a new program, project, or activity by conducting planning or funding the existing programs, projects, and activities.
   “As long as NASA does not improperly create or terminate a program, project, or activity, it has discretion in how to carry out the Constellation program. Regardless of its current restrictions, NASA will need to continue to implement new ways of doing business going forward. Critical to this will be ensuring the needs and expectations for a project match the resources available for it, effectively managing costs, increasing transparency into critical phases of development, and strengthening accountability,” the GAO said.
   NASA has taken steps to incorporate a more knowledge-based approach to managing its projects with a stronger focus on managing costs, the GAO said. However, the organization said its ongoing work indicates that NASA has not, “established a common measure to assess design stability before allowing programs to move from the design phase to the test and integration phases of the development process … or provided enough transparency in the early, critical phases of development to help Congress identify risks and inefficiencies and ensure earlier accountability.”
   NASA, which is not required to publicly report costs and schedule data, has already spent over $9 billion combined on the Ares and Orion projects. But, GAO’s recommendations to congress suggested the agency enhance its oversight and accountability functions to “ensure that projects base their decisions on sound knowledge so that inherent risks are not exacerbated by poor management and oversight practices.”
    Despite the confusion, the agency wasted no time in seeking commercial launch partners since the Authorization Act went into effect. In the span of a month, NASA entered into Modular Space Vehicle (MSV), Rapid Response Space Works (RRSW) and heavy-lift launch vehicle development contracts with 16 different commercial entities. The RRSW and MSV contracts share a maximum value of $500 million.
   Acting as a contracting agent for the U.S. Department of Defense‘s Operationally Responsive Space (ORS) Office, NASA also awarded contracts to five companies Nov. 11 to develop multi-mission the MSVs. ATK Space Systems, Miltec Corp., Northrop Grumman Systems, PnP Innovations and Sierra Nevada Corp. will provide support for the ORS office at Kirtland Air Force Base, N.M., for a period of five years, while NASA will help facilitate planning, acquisition and operations.