House Committee Approves Bill Requiring Congressional Approval Before Terminating JWST, ISS, SLS or Orion

The House Science, Space and Technology Committee approved today a bill that changes how NASA would manage termination of four of its major programs if such a decision were made.  The committee first adopted an amendment that adds the James Webb Space Telescope (JWST) to the three human spaceflight programs covered in the original bill — the International Space Station (ISS), the Space Launch System (SLS) and the Orion crew spacecraft.

The bill, H.R. 3625, initially had two major thrusts:  to require the Administration to obtain congressional approval before terminating SLS, Orion or the ISS, and to prohibit contractors on those programs from setting aside appropriated funds to cover costs the government would have to pay in the event it did terminate any of those programs for the convenience of the government — called termination liability costs.  

Rep. Mo Brooks (R-AL) said when he introduced the bill that contractors on SLS, Orion and ISS are reserving a total of $507 million that Congress appropriated rather than using the money to implement those programs.

The committee was scheduled to mark up the bill on December 5 at the same time it considered three other unrelated bills.   When it came time to mark up this bill, however, committee chairman Rep. Lamar Smith (R-TX) announced that more time was needed for Republicans and Democrats to reach agreement and recessed the markup.

The markup was scheduled to resume yesterday, but government offices in Washington, DC were closed because of a snowstorm, so it was rescheduled for today.

The markup lasted less than 10 minutes and the amendment and bill were adopted by voice vote. 

The major change made by the amendment, which was offered by Smith, is adding JWST to the list of programs covered by the bill.  Smith said in his opening remarks that JWST was added at the request of Rep. Donna Edwards (D-MD), the top Democrat on the Space Subcommittee who represents a district in Maryland close to NASA’s Goddard Space Flight Center where JWST is managed.    One section of the amendment states that although JWST is “making steady progress,” it also “confronts a number of challenging integration tests that will stress a congressionally imposed development cost cap.”

JWST has been very controversial because of significant cost overruns and schedule slips.   In 2011, Congress imposed a cap of $8 billion for development of the spacecraft in the FY2012 appropriations act that included NASA (P.L. 112-55).   The program has encountered a number of technical problems since then, but NASA insists that it has sufficient cost and schedule reserve that they will not impact the cost cap or the 2018 launch date.  The language added by Edwards could be construed as suggesting that such optimism may not be warranted.

Another change made by the amendment replaces language that would have voided existing contract provisions that provide for payment of termination liability costs in a manner inconsistent with the bill.  The new language simply states that funds being held in reserve for termination liability “shall be promptly used” for executing the program. 

The bill also makes clear that it is the intent of Congress to authorize appropriations to cover termination liability if, in fact, Congress agrees that the Administration should terminate a contract and that it is the Administration’s responsibility to spend such funds for that purpose.

Terminating contracts for the convenience of the government is rare.  As the findings section of the bill states, in FY2010, the government terminated “28 of 16,343 active contracts and orders — a termination rate of about 0.17 percent.”