Congress, NASA

House committee passes amended termination liability bill

After failing to come to an agreement on an amendment during a markup session last week, the House Science Committee took less than ten minutes Wednesday afternoon to approve an amended bill that would block NASA from reserving funds for termination liability for several key programs and also prevent the agency from unilaterally canceling those programs.

After brief statements, the committee approved on voice votes an amendment to HR 3625, then the bill itself. The bill originally prevented NASA from reserving funds for termination liability costs for the Space Launch System (SLS), Orion spacecraft, and International Space Station (ISS), while preventing NASA from terminating prime contracts for those programs without the approval of Congress. The amendment includes the James Webb Space Telescope (JWST) to the programs covered by the bill, and makes a number of wording changes to clarify what a “prime contract” is, and to explicitly state that termination liability funds that have been reserved to date for the covered programs “shall be promptly used to make maximum progress in meeting the established goals and milestones of the covered program.”

Proponents of the bill—and there were no opponents of it who spoke during the markup—emphasized that the bill would free up money to be spent on making progress on those programs. “HR 3625 helps accelerate progress on these vital space programs by allowing these programs to spend dollars that have already been appropriated on actual work, rather than withholding these funds on the unlikely chance of program termination,” Rep. Mo Brooks (R-AL), the bill’s sponsor, said at the markup.

Earlier in the day, at a meeting of the FAA’s Commercial Space Transportation Advisory Committee (COMSTAC) in Washington, a staffer for another member of Congress expressed support for the bill. “Congress has appropriated, through a very difficult process in the House and Senate, a certain amount of money for a program. The agency should not withhold that money ‘just in case,’” said Mark Dawson, legislative director for Rep. Robert Aderholt (R-AL), a member of the House Appropriations Committee. “They should proceed with the work on the program.” He said the way termination liability had been applied by NASA was “a real problem” for the SLS program in particular, and that Rep. Aderholt supported the bill.

NASA associate administrator Robert Lightfoot, speaking a little later at the COMSTAC meeting, said that NASA’s decision to withhold funds for those programs for termination liability was based on legal and procurement guidance it received, but appeared to welcome the legislation. “We’ll see if we get relief on that,” he said.

Speaking a short time later, though, former NASA deputy administrator Lori Garver subtly criticized the bill’s provision prohibiting NASA from canceling the programs covered by the bill. “In my view, we should not be debating whether or not we should have the ability to terminate a program that is not working in a cost-plus environment,” she said. “That should not be debated. That’s something that we recognize is the way, when your government is funding a program, you have to protect against slips in development.”

30 comments to House committee passes amended termination liability bill

  • Robert G. Oler

    there is bad news cost and schedule wise coming in SLS and Orion and the folks who are its protectors are trying to well protect it. The Space Industrial complex at its best.

    Robert G. Oler

    • MrEarl

      Oh, Great Carnack Oler, you’ve been predicting this for 3 years now and yet SLS and Orion survive with no appreciable slips in schedule and cost. What this tells me is that there is a concern about future funding.
      It would be prudent if this provision could be in-place for future commercial crew contracts. My concern would be that the budget would just be cut outright by the amount saved by provision.

      • Coastal Ron

        MrEarl said:

        …you’ve been predicting this for 3 years now and yet SLS and Orion survive with no appreciable slips in schedule and cost.

        There hasn’t been a full up program cost review yet. Absent any other factors, the full up budget review has always been the point where the real cost of the SLS and MPCV programs would be revealed. Up until now they can hide the costs because their budget horizons only go out a couple of years, not through to the completion of the programs.

        Not to worry, it won’t be long…

        • MrEarl

          What is your interpretation of a “full up” cost review?
          Looks like Egad has a report by the GAO from April that estimates the cost of SLS up thru the first non-crewed flight in Dec, 2017 and for 3 months of evaluation. Frankly that’s as far as we can go now with any certainty. So for what appears to be between $7.6 and $8.6 billion we’ll get the initial development of an evolvable launch system that is able to lift 70mt to LEO with the ability to expand to 130mt and maybe to 200mt to LEO. Once a path to 130mt is decided upon, out of the 3 that are currently under consideration, then reasonable cost estimates can be mad for that phase.
          Whether you agree with the premise of the program or not, development costs can only be accurately estimated in stages.

          • Coastal Ron

            MrEarl said:

            Looks like Egad has a report by the GAO from April that estimates the cost of SLS up thru the first non-crewed flight in Dec, 2017 and for 3 months of evaluation.

            That’s what I mean – there is no true full-up cost estimate for the SLS yet, or the MPCV, so anyone stating they are on schedule and on budget can’t say that. No one can.

            And if you think the SLS and MPCV are going to be the first NASA programs in a very long while that come in on budget and on schedule, then you are deluding yourself. The SLS and MPCV programs are the type that government contracts dream about winning – no known need dates, no firm designs, and plenty of politicians protecting their pork.

            Why would they want that gravy train to stop?

            • MrEarl

              And what I was trying to do is to get you to define what you mean by “full up costs”.

              • Malmesbury

                You’ll notice that trying to get hold of a cost estimate for SLS/Orion seems strangely difficult.

                You’ll also notice that there are a large number of open items – Orion being too heavy for the parachutes for example.

                There is a reason the friends of SLS are looking under the cushions for spare change….

              • Coastal Ron

                MrEarl said:

                And what I was trying to do is to get you to define what you mean by “full up costs”.

                What is the full cost of developing the SLS and MPCV? They shouldn’t be entitlement programs with no end date and no budget cap.

                When will they be fully developed, tested and ready for their intended use, and how much will it have cost the U.S. Taxpayer?

                Is this a hard concept to understand?

              • Vladislaw

                The OIG stated that MPCV.Orion is going to cost 16.5 billion. I believe Booz Allen said that the 30 billion for SLS is a low number and would need a lot more. 50 BILLION …for a freakin’ disposable capsule and launcher.

                SpaceX want 2.5 billion, Lockheed 6 billion and Boeing 6.5 billion.

                We could have FULLY FUNDED all three of those and SIX MORE companies besides at those rates, for the cost of these porktrains.

    • Egad

      Speaking of SLS cost, I was reviewing the GOA report on large NASA programs that came out last April and was interested to see that “NASA officials stated that the full life-cycle cost of SLS cannot be calculated because SLS is really a program and not a project that has a discrete start and endpoint. Thus, NASA is thinking in terms of what the cost is for attaining a certain level of capability, and what it costs to fly each version of SLS.” It will be interesting to see how that’s handled in the KDP-C that’s now (presumably) reaching completion and which, in the normal course of things, would incorporate a lifetime budget estimate.

      GAO Report to Congressional Committees
      NASA
      Assessments of Selected Large-Scale Projects
      April 2013
      GAO-13-276SP
      United States Government Accountability Office

      Space Launch System

      Preliminary estimate of Project Cost through first non-crewed launch(*):
      Latest: February 2013 $7.65 (to) $8.59 billion

      *This estimate is preliminary through the first non-crewed launch in December 2017, as the project is in formulation and there is uncertainty regarding the costs associated with the design options being explored. NASA uses these estimates for planning purposes.

      In November 2012, NASA produced a preliminary estimate of $7.65 to $8.59 billion for the 70 metric ton version of SLS. This is not a life cycle cost estimate, however, because it only covers the first non-crewed launch date in December 2017, plus three months of data analysis. This estimate does not include costs for the first crewed flight of the same vehicle type of the SLS in 2021, nor does it include costs associated with substantial development for future flights of other variants of the launch vehicle. NASA officials stated that the full life-cycle cost of SLS cannot be calculated because SLS is really a program and not a project that has a discrete start and endpoint. Thus, NASA is thinking in terms of what the cost is for attaining a certain level of capability, and what it costs to fly each version of SLS.

      • Egad

        > It will be interesting to see how that’s handled in the [SLS] KDP-C that’s now (presumably) reaching completion and which, in the normal course of things, would incorporate a lifetime budget estimate.

        Or not. Following a pointer DBN gave to the OIG MPCV report that came out in August, I spotted a figure (No. 7 on page 25) that shows the SLS PDR in July, 2013 — which actually happened — and KDP-C with an estimated completion date in September 2014(!). That’s a year after earlier schedules indicated, and, though I normally avoid exclamation points, one seems appropriate here.

        http://oig.nasa.gov/audits/reports/FY13/IG-13-022.pdf

        August 15, 2013
        Office of Audits
        Office of Inspector General
        Report No. IG-13-022 (Assignment No. A-12-002-00)

        Status of NASA’s Development of the Multi-Purpose Crew Vehicle

        Efforts to Coordinate Programs.

        Recognizing that the programs are at different stages of development, NASA management has taken action to synchronize the MPCV Program with the development schedules for the SLS and GSDO programs. For example, instead of proceeding to the implementation phase, officials directed the MPCV Program to coordinate its development with the SLS and GSDO programs and remain in the formulation phase until the rocket developm ent and ground system programs were more mature. In extending the formulation phase for the MPCV Program, managers revised the Program’s Key Decision Points and other developmental milestones to better align with the SLS and GSDO programs. Figure 7 illustrates the revised development schedule
        for the CEV Project and the MPCV, SLS, and GSDO programs.

        So it appears as if not only the MPCV KDPs were moved, but there was a more general rescheduling that took place sometime this summer.

  • Someone on my blog raised the question of whether commercial cargo and/or crew are protected by the ISS language. HR 3625 doesn’t define ISS, although it does define SLS and Orion, so it’s not clear to me. If anyone wants to offer an informed opinion, please let us know.

    Here’s the video for the porkfest, it’s less than ten minutes:

    https://www.youtube.com/watch?v=-BTE16Ys_mk

    • Ferris Valyn

      Stephen,
      HR 3625 does include ISS, (and now JWST). CCrew is a separate program. It would be interesting if they tried to bring CCrew into the ISS program, as a result of this.

      However, how much it would protect them is unknown. Because of the manager’s amendment that incorporated an amendment from Alan Grayson, which only protects the prime contractor, which is defined as “a contract entered directly between a person or entity and the Federal Government for the performance of all or the majority of the responsibilities for developing, integrating, fielding, operating, or sustaining a covered program. ”

      This may (not for sure) mean that it ONLY protects the following contractors – Boeing for ISS, Boeing for SLS, Lockheed Martin for Orion, and Northrup Grummen for JWST. If it is read that way, it would mean ATK would NOT be protect for its Boosters, Aerojet would NOT be protected for its engine work, etc.

      • MrEarl

        You’re right Ferris, only the PRIME contractors will be covered. A little bit of comfort for all the ATK haters out there.

        • Coastal Ron

          MrEarl said:

          A little bit of comfort for all the ATK haters out there.

          I think E.P. is the only continuing to worry about ATK. The SLS isn’t going to fly enough to provide anyone with enough work to matter…

      • Andrew Swallow

        If only the prime contractors are covered does that mean that any subcontractor termination liabilities would how be paid by the prime contractors? They must hate getting that hidden price cut.

  • Dark Blue Nine

    It’s hard to get too excited about this bill because:

    1) The House adjourns at the end of the week. The likelihood that this bill will make it to the House floor (nevertheless the Senate or White House) this year is nil. The sponsors will have to start over again next year, assuming they want more out of this bill than a blurb to put in a newsletter to constituents back home.

    2) The bill contravenes the Anti-Deficiency Act. A current Congress can’t force a future Congress to vote a certain way, whether to cover termination liabilities or on anything else. At some point, someone with half a legal mind will bring this up and the bill will get stopped in the House or Senate. Or the White House will refuse to sign the bill into law. Or the NASA general counsel will write an opinion that the bill is unenforceable under ADA.

    That said, the bill is a naked and shameful attempt to cover coming overruns with termination funds. It’s really sad that this is what constitutes congressional oversight in our age…

    • Coastal Ron

      Dark Blue Nine said:

      That said, the bill is a naked and shameful attempt to cover coming overruns with termination funds. It’s really sad that this is what constitutes congressional oversight in our age…

      Well said.

      It may also foretell something that these Congresscritters have heard from their constituents (OldSpace, not those that vote them in), which is that they won’t be able to hide the situation the SLS and MPCV programs are in for much longer.

      For instance, Congress has not even come close to considering one mission for the SLS, much less the minimum of two per year needed to fly the SLS at a safe flight rate starting in 2022. Someone is going to do the math pretty soon and realize that we’re spending $30B+ on something no one wants to use.

      And this ignores the other issue, which is that it is unlikely that the SLS and MPCV programs will be one of those rare programs that stays on schedule and on budget. I just don’t see that happening.

      This bill was a naked attempt to head off the most likely situation coming, which is a review of the goals of the SLS and MPCV programs, and their lack of any funding support for their usage.

      • Coastal Ron wrote:

        It may also foretell something that these Congresscritters have heard from their constituents (OldSpace, not those that vote them in), which is that they won’t be able to hide the situation the SLS and MPCV programs are in for much longer.

        The AWOL Robert G. Oler :-) posted a similar sentiment over on Facebook, and I think he’s right. The porkers are looking ahead a few years to when SLS is falling on its face, while Falcon Heavy is happily launching from LC-39A.

    • MrEarl

      DBN, the 113th congress runs through January 3rd 2015. No need to start over next year.
      As for number 2; in my experience the law is what the present legislature says it is and/or the courts and chief executive interpret them to be at any particular time. If this is passed by the legislature I don’t see this as being important enough for a veto by the president or to challenge in the courts.
      Ron, I think it’s pretty clear that SLS and Orion will at least make the initial goal of 70mt to LEO by Dec 2017 on time and on budget. Anything after that is purely speculation.

      • Dark Blue Nine

        “No need to start over next year.”

        Correct. It won’t be taken up again until next year.

        “As for number 2; in my experience the law is what the present legislature says it is and/or the courts and chief executive interpret them to be at any particular time.”

        It’s a fundamental principle of our system of government (and representative democracy in general) that one congress can’t force a future congress to vote a certain way, especially when it comes to incurring new obligations. Today’s congress (or House Science Committee) can’t take away funding for termination liability on the promise that a different, future congress (or House Science Committee) will provide (or authorize) that funding in the event of termination. It’s the legislative equivalent of Wimpy saying that he’ll pay Popeye for a hamburger on Tuesday if Popeye pays for one today. This is a major breach of the Anti-Deficiency Act, and if it stood, every pet program in congress would seek the same treatment. No one outside the House Science Committee is going to stand for it.

        “If this is passed by the legislature…”

        I doubt this bill makes it to the House floor. Even setting aside the absurdity of today’s congress promising that a future congress yet to be elected will vote to undertake an obligation just because today’s congress says so, this bill treads all over the rights of the appropriators. The authorizers don’t get to tell the appropriators that they have to pay a certain obligation that the appropriators have not voted to fund. Even if no one cared about the ADA, the appropriators are going to kill this bill in the crib.

        “If this is passed by the legislature I don’t see this as being important enough for a veto by the president or to challenge in the courts.”

        In the extremely unlikely event that insanity and incompetence reign in both the House and Senate whenever this bill gets discussed, the White House won’t sign onto a bill when their lawyers point out that it’s not consistent with ADA or general constitutional principles. And this White House in particular won’t sign onto what is effectively a budget increase for these programs.

        And in the incredibly unlikely event that the bill is signed into law, the NASA General Counsel is going to refuse to implement it because it is at loggerheads with the ADA. And no contractor or congress is going to take NASA to court over that.

        It’s just a goofy bill that provides some circus for NASA constituents back home, but has no serious means of delivering any bread for SLS, MPCV, ISS, or JWST.

        “Ron, I think it’s pretty clear that SLS and Orion will at least make the initial goal of 70mt to LEO by Dec 2017 on time and on budget.”

        What are you smoking?

        OIG Cites Multiple Orion/MPCV Delays
        http://nasawatch.com/archives/2013/08/oig-cites-multi.html

        New NASA Rocket Faces Delays
        http://articles.orlandosentinel.com/2013-09-06/news/os-nasa-sls-garver-20130906_1_space-launch-system-core-stage-orion-capsule

        ESA’s Orion Service Module Overweight, Delaying PDR
        http://www.aviationweek.com/Article.aspx?id=/article-xml/awx_06_17_2013_p0-588984.xml

        • MrEarl

          “OIG Cites Multiple Orion/MPCV Delays”
          Even a quick perusal of the full report shows that MPCV/Orion will make it’s milestones for the first 2 launches on time and on budget. It’s the out-years that has the problems meaning there is time to make corrections.

          “New NASA Rocket Faces Delays”
          Opinion from Lori Garver who was not a supporter of either program to begin with.

          “ESA’s Orion Service Module Overweight, Delaying PDR”
          That’s the PDR for the service module which is not needed until 2021.

          I think what NASA and supporters in congress are trying to do is to get SLS and the MPCV minimally functional by the end of 2017. By then it’s hoped that the economy and budget will be on a more sound footing and that successful tests of these systems will will convince a new administration to increase support for missions to the moon and Mars. At least that’s what I’m hearing from the people that I know. Granted, that later support could just be a pipe dream but an operational system in 2017 goes a long way to making a good argument to do it.

          • Dark Blue Nine

            “Even a quick perusal of the full report shows that MPCV/Orion will make it’s milestones for the first 2 launches on time and on budget.”

            Speed-reading is not your strong suit:

            “test dates have slipped… 9 months on the Exploration Flight Test-1″

            http://spaceref.com/news/viewpr.html?pid=41340

            EFT-1 is MPCV’s first launch.

            “Opinion from Lori Garver who was not a supporter of either program to begin with.”

            Opinion from the Deputy Administrator who had access to a lot more and more accurate information on these programs than is available in the public domain.

            “That’s the PDR for the service module which is not needed until 2021.”

            EM-1 circumnavigates the Moon in 2017, and the service module is required for that mission. You should know that if you’re following these programs at even a low level of detail. But if you’re ignorant of the fact, it’s mentioned in the very first sentence of the AvWeek article that I linked to:

            “The European Space Agency (ESA) and its industrial partners need to reduce the weight of a service module they are developing to fly on NASA’s Orion multipurpose crew exploration vehicle in 2017…”

            http://www.aviationweek.com/Article.aspx?id=/article-xml/awx_06_17_2013_p0-588984.xml

            You gotta work on your comprehension and retention.

            “I think what NASA and supporters in congress are trying to do is to get SLS and the MPCV minimally functional by the end of 2017. By then it’s hoped that the economy and budget will be on a more sound footing”

            False hope. Baby boomer retirements start driving the deficit back up at exactly that time:

            http://www.cbo.gov/publication/44521

            “and that successful tests of these systems will will convince a new administration to increase support for missions to the moon and Mars.”

            Even if the deficit magically turns around in the face of overwhelming demographics and the next Administration magically makes NASA a priority, those kinds of missions using MPCV and SLS require an annual infusion of several billion dollars into NASA’s budget. NASA’s budget hasn’t seen those kinds of increases in nearly 50 years. You’re hoping for another Apollo-like event. You might as well quit you job, buy a lottery ticket, and bet your retirement on it while you’re at it.

            “an operational system in 2017 goes a long way to making a good argument to do it.”

            Magical thinking. Ares I-X didn’t save Ares I.

            “At least that’s what I’m hearing from the people that I know.”

            The folks you know are unrealistic and out-of-touch.

            • Malmesbury

              Hence the rush to get *an* Orion of *some kind* into orbit. Hence also strange delays to the docking adapter for ISS – a perfect excuse of delaying a manned launch of Commercial Crew.

              If a Commercial Crew vehicle flies manned before the next President takes office, SLS/Orion is in trouble.

              Hence the fury when certain parties found out that one of the Commercial Crew entrants (no, not Tony Starks lot) had plans for a CBM-to-NDS adapter which would allow their contender to turn up to the station before the “offical” adapter is ready. Just a CAD file apparently that got seen over someones shoulder…..

          • Robert G. Oler

            Big NASA programs are always on time and on budget until suddenly they are not. and then the very same people who were saying they are on time and on budget now are explaining that they are not because they never got the funding they needed.

            Just wait it is coming in 14.

            Robert G. Oler

  • The Republicans will pass it in the House and the Democrats will pass it in the Senate. No one cares about results… only funding.

    How Mo Brooks can pull this off is shameful…

    Which is why iCap is so important.

  • S Brennan

    Lori Garver, was/is a political hack, she engages in political manipulation for personal profit, she does not hold, indeed never has held, a Science Degree.

    Lori Garver’s interest has always been politics, how such a creature obtained a position of power in the space program should be a study in Machivellian mischief.

    Anybody taken in by Lori Garver’s prognostications on matters related to Aeronautics & Astrophysics should have their credentials to speak on such matters questioned.

  • Bob

    “Lori Garver, was/is a political hack, she engages in political manipulation for personal profit, she does not hold, indeed never has held, a Science Degree.”

    You know who else didn’t have a “Science Degree”? James Webb.

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