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REVIEW OF THE RESULTS OF TWO AUDITS 

OF THE NATIONAL ECOLOGICAL 

OBSERVATORY NETWORK 

HEARING 

BEFORE THE

COMMITTEE ON SCIENCE, SPACE, AND 

TECHNOLOGY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

December 3, 2014 

Serial No. 113–97 

Printed for the use of the Committee on Science, Space, and Technology 

( 

Available via the World Wide Web: http://science.house.gov 
(II) 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY 

HON. LAMAR S. SMITH, Texas, Chair 

DANA ROHRABACHER, California 

RALPH M. HALL, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

FRANK D. LUCAS, Oklahoma 

RANDY NEUGEBAUER, Texas 

MICHAEL T. MCCAUL, Texas 

PAUL C. BROUN, Georgia 

STEVEN M. PALAZZO, Mississippi 

MO BROOKS, Alabama 

RANDY HULTGREN, Illinois 

LARRY BUCSHON, Indiana 

STEVE STOCKMAN, Texas 

BILL POSEY, Florida 

CYNTHIA LUMMIS, Wyoming 

DAVID SCHWEIKERT, Arizona 

THOMAS MASSIE, Kentucky 

KEVIN CRAMER, North Dakota 

JIM BRIDENSTINE, Oklahoma 

RANDY WEBER, Texas 

CHRIS COLLINS, New York 

BILL JOHNSON, Ohio 

EDDIE BERNICE JOHNSON, Texas 

ZOE LOFGREN, California 

DANIEL LIPINSKI, Illinois 

DONNA F. EDWARDS, Maryland 

FREDERICA S. WILSON, Florida 

SUZANNE BONAMICI, Oregon 

ERIC SWALWELL, California 

DAN MAFFEI, New York 

ALAN GRAYSON, Florida 

JOSEPH KENNEDY III, Massachusetts 

SCOTT PETERS, California 

DEREK KILMER, Washington 

AMI BERA, California 

ELIZABETH ESTY, Connecticut 

MARC VEASEY, Texas 

JULIA BROWNLEY, California 

ROBIN KELLY, Illinois 

KATHERINE CLARK, Massachusetts 
(III) 

C O N T E N T S 

December 3, 2014 

Page 

Witness List ............................................................................................................. 2 

Hearing Charter ...................................................................................................... 3 

Opening Statements 

Statement by Representative Lamar S. Smith, Chairman, Committee on 

Science, Space, and Technology, U.S. House of Representatives ..................... 4 

Written Statement ............................................................................................ 6 

Statement by Representative Eddie Bernice Johnson, Ranking Member, Committee on Science, Space, and Technology, U.S. House of Representatives .... 8 

Written Statement ............................................................................................ 10 

Witnesses: 

The Honorable Allison Lerner, Inspector General, National Science Foundation 

Oral Statement ................................................................................................. 12 

Written Statement ............................................................................................ 15 

The Honorable Anita Bales, Director, Defense Contract Audit Agency 

Oral Statement ................................................................................................. 25 

Written Statement ............................................................................................ 27 

Discussion ................................................................................................................. 39 

Appendix I: Answers to Post-Hearing Questions 

The Honorable Allison Lerner, Inspector General, National Science Foundation ........................................................................................................................ 58

The Honorable Anita Bales, Director, Defense Contract Audit Agency .............. 69 

Appendix II: Additional Material for the Record 

Memorandum submitted by Representative Eddie Bernice Johnson, Ranking 

Member, Committee on Science, Space, and Technology, U.S. House of 

Representatives .................................................................................................... 84 

Memorandum submitted by Representative Lamar S. Smith, Chairman, Committee on Science, Space, and Technology, U.S. House of Representatives .... 100 

Memorandum submitted by Representative Lamar S. Smith, Chairman, Committee on Science, Space, and Technology, U.S. House of Representatives .... 106 

(1) 

REVIEW OF THE RESULTS OF TWO 

AUDITS OF THE NATIONAL ECOLOGICAL 

NETWORK 

WEDNESDAY, DECEMBER 3, 2014 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY, 

Washington, D.C. 

The Committee met, pursuant to call, at 10:05 a.m., in Room 

2318 of the Rayburn House Office Building, Hon. Lamar Smith 

[Chairman of the Committee] presiding. 
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Chairman SMITH. The Committee on Science, Space, and Technology will come to order. Good morning to everyone here, and I 

appreciate the Member attendance we have this morning as well. 

Welcome to today’s hearing entitled the ‘‘Review of the Results 

of Two Audits of the National Ecological Observatory Network.’’ I 

recognize myself for five minutes for an opening statement and 

then the Ranking Member. 

Today’s hearing will focus on one of the National Science Foundation’s most ambitious major research facility projects, the National Ecological Observatory Network, or NEON. 

We are fortunate to have with us the heads of two government 

organizations that are responsible for assuring that taxpayers get 

their money’s worth from the Federal contracts with private entities like NEON. Our witnesses will discuss two audits of the 

NEON project conducted by the Defense Contract Audit Agency 

under contract with the National Science Foundation Office of the 

Inspector General. 

The NSF entered into a long-term agreement with NEON to develop and operate the project’s network of more than 100 fixed and 

mobile sensors. This audit identified more than $150 million in unsupported or questionable costs in the NEON proposal. It concluded 

that there was not a ‘‘fair and reasonable basis’’ for NSF to enter 

into the contract. Nevertheless, NSF did not wait for the audit results. It instead finalized an agreement based on NEON’s original 

cost proposal. 

Audits have raised questions about cost proposals that were accepted by NSF for several major projects. These includ the Ocean 

Observatories Initiative, the Advanced Technology Solar Telescope, 

NEON, and currently the Large Synoptic Survey Telescope. 

In response to these audits, NSF has made a number of adjustments to how the agency evaluates costs of major projects. The 

$150 million in unsupported and questionable costs in the NEON 

proposal demonstrates that major problems at NSF continue. 

Auditors discovered several highly questionable expenditures of 

taxpayer funds by NEON, including hundreds of thousands of dollars spent on lobbying, lavish parties, liquor for office happy hours, 

over $1,000 per month for premium coffee service, and trips to a 

high-end resort in France. 

These suspicious taxpayer-financed activities were not detailed in 

the audit submitted to the NSF Inspector General, which was limited in scope. But to his credit, the principal auditor, J. Kirk 

McGill, invoked the Whistleblower Protection Act to make sure 

that the Inspector General, Congress, and ultimately the public 

was aware of hundreds of thousands of taxpayers’ dollars being 

spent on improper activities. 

I hope to hear from our witnesses on what basis NEON concluded, for example, that spending $25,000 for a holiday party last 

year was an appropriate use of Federal funds. And why did NSF 

allow this to happen? Our Committee may want to hear directly 

from the NSF and NEON about these audits at a hearing next 

year. 

Federal agencies must be held accountable for their waste and 

misuse of taxpayer funds. And the NSF needs to be held accountable for how they spend taxpayers’ hard-earned dollars. The basic 
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responsibility of any government agency is to act in the national 

interest. The NSF needs to meet that standard. 

That concludes my opening statement. 

[The prepared statement of Mr. Smith follows:] 
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Chairman SMITH. And the gentlewoman from Texas is recognized 

for hers, Eddie Bernice Johnson. 

Ms. JOHNSON. Thank you very much, Mr. Chairman. 

I have to confess that I am baffled by today’s full Committee 

hearing. There may be legitimate policy and management issues 

for this committee to consider, but this particular hearing at this 

time is in my opinion premature, incomplete, and lacks balance. 

Therefore, it is impossible to have a full discussion on any of the 

legitimate oversight issues that we could examine. 

As I am sure you are aware, Inspector General Lerner and NSF’s 

Director Dr. Cordova have initiated reviews of NSF’s policies and 

oversight of management fees and those reviews are not yet complete. NSF is also investigating spending specific to NEON and 

that is also underway. 

Today, the most we will hear is some preliminary observations 

from IG Lerner and Ms. Bales that NSF should consider tightening 

up its policies with respect to management fees. Perhaps the agency should do just that but the October 2014 DCAA audit report 

being reviewed today was not made available to NSF until two 

weeks ago and it made no mention of management fees. So while 

the discussion was had at the staff level about inviting NSF, there 

was agreement that it was too late to reasonably expect the agency 

to prepare testimony for this hearing and at the same time premature for the reasons I have already described. If we had postponed this hearing until next year, as my staff urged your staff to 

do, we might have included NSF on this panel to present their own 

findings and plans with respect to the management fees. 

We will also hear testimony from the witnesses about contingency fees. NSF senior management and IG Lerner have been at 

an impasse on the use and management of contingency fees for 

construction projects for four years. Both had the opportunity to 

share their views before this committee at a 2012 hearing. Since 

that time, OMB has updated its own guidance on contingencies. As 

my staff understands the update of regulations, some of the specific 

areas of dispute, such as how contingency expenditures are 

tracked, should now be settled. 

There are other areas of dispute such as how the contingency 

fund is managed that remain open to debate among reasonable 

people. That is a key point. For these particular policy issues there 

is no clear right or wrong so how do we expect to have any meaningful discussion about these disputes today without the agency at 

the table to represent—to present and defend its own positions? 

Mr. Chairman, I ask unanimous consent to submit for the record 

a 2013 memo from NSF’s Chief Financial Officer that provides detailed justifications for the agency’s current policies. However, a 

document for the record does not make this a balanced, complete 

hearing. 

Chairman SMITH. Okay. Without objection. 

[The information appears in Appendix II] 

Chairman SMITH. And at the same time I would like to ask 

unanimous consent to put in the record the following documents 

that are in a binder I have here. And the title of the documents 

is ‘‘The Results of—— 

Ms. JOHNSON. I would like to reclaim my time now. 
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Chairman SMITH. —‘‘Results of the Two Audits of the National 

Ecological Observatory Network.’’ And without objection, both your 

request for documents in the record and mind will be so ordered. 

[The information appears in Appendix II] 

Ms. JOHNSON. Thank you, Mr. Chairman. 

And finally, it is with some reluctance that I offer the following 

observations. DCAA, the Defense Contract Audit Agency, was established to audit DOD contracts subject to defense acquisition regulation. I am concerned that they simply do not have sufficient 

staff with expertise or experience to appropriately audit NSF’s 

grants and cooperative agreements. 

My staff has heard from several entities audited by DCAA on behalf of the IG that the auditors repeatedly asked for the wrong documentation and made significant errors in their assessment of information. Further, auditors repeatedly failed to work with the audited entity in a transparent way that would have resolved significant costs that were later questioned in publicly available documents, including the IG’s semiannual reports. Having heard common complaints from several unrelated entities, I am unwilling to 

attach too much weight to any adverse findings by DCAA without 

further review. 

Unfortunately, problems with DCAA’s audit have caused significant and ongoing tension between the IG and NSF management for 

several years and have put credible NSF awardees unnecessarily at 

risk. These problems also color today’s hearing. 

Ms. Bales, please do not take my comments as a personal criticism; I am just concerned that the auditing organization’s skills fit 

the job when we are rendering judgments about the proper use of 

Federal funds and questioning the performance of world-class research institutions and organizations. We didn’t even see DCAA 

testimony for this hearing until 5:00 last night. 

Mr. Chairman, I want to join you in conducting legitimate oversight of the National Science Foundation, but for the reasons that 

I have mentioned, I don’t think we will—this will be possible for 

today’s hearing. 

Thank you and I yield back. 

[The prepared statement of Ms. Johnson follows:] 
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Chairman SMITH. Thank you, Ms. Johnson. 

And I will introduce our witnesses today but I will say preliminarily that I appreciate all the good work you all have done. I appreciate the fact that you are individuals of integrity and have contributed much to help us conduct our legitimate oversight responsibilities. 

Our first witness, Ms. Allison Lerner, is the Inspector General 

for the National Science Foundation and the Chair of the Council 

of the Inspectors General on Integrity and Efficiency. Ms. Lerner 

previously served in leadership positions at the Department of 

Commerce and was selected by the President to be a member of the 

Government Accountability Transparency Board in 2011. Ms. 

Lerner received her bachelor’s and her law degree from the University of Texas. She is certainly no stranger to the Committee and 

we are happy to welcome her back to the witness table. 

Our second witness, Ms. Anita Bales, is the Director of the Defense Contract Audit Agency. The NSF Office of the Inspector General relies on the DCAA to perform audits of National Science 

Foundation major research facilities like NEON, which the Inspector General reviews and submits to the National Science Foundation. Before her work at DCAA, Ms. Bales served as the Deputy 

Auditor General for Forces and Financial Audits of the Army Audit 

Agency. Ms. Bales received her bachelor’s degree in business administration from Drake University and her MBA from Syracuse 

University. She is the recipient of the President’s Council on Integrity and Efficiency Award for Auditing, and we are happy to have 

you with us today as well. 

And, Ms. Lerner, would you begin? 

TESTIMONY OF THE HONORABLE ALLISON LERNER, 

INSPECTOR GENERAL, 

NATIONAL SCIENCE FOUNDATION 

Ms. LERNER. Thank you. Mr. Chairman and Members of the 

Committee, I appreciate this opportunity to discuss two audits of 

the National Ecological Observatory Network and my office’s efforts 

to help ensure that NSF spends taxpayer dollars effectively and for 

the intended purpose of advancing scientific research. 

We contracted with DCAA in 2011 to perform an audit of NEON’s $433 million proposed budget to determine if it was prepared in accordance with federal requirements and formed an acceptable basis for the negotiation of a fair and reasonable price. 

From July through September 2011 DCAA issued three inadequacy 

memoranda stating that NEON’s proposed budget could not be audited. The final such report found that none of the proposed cost 

elements for labor, overhead, equipment, and other items reconciled to supporting data. DCAA also found the proposal included 

more than $74 million in unallowable contingency costs and more 

than $1 million in unallowable honoraria. 

In February 2012 NEON submitted a revised budget proposal 

which DCAA was able to audit. Despite working with NEON for 

several months to clear inadequacies in the proposal, auditors 

found a total of $154 million, or nearly 36 percent of the total budget, in questioned and unsupported costs. The entire $72.6 million 

proposed contingency was questioned. In addition, more than 13 of 
13 

the $14 million in costs for materials and nearly $16 million of 

equipment costs could not be supported. Other questioned costs included $1.8 million in management fees for unallowable costs. 

As a result, in September 2012 auditors issued an adverse opinion stating that the proposal did not form an acceptable basis for 

the negotiation of a fair and reasonable price. Among other things, 

we recommended that NSF require NEON to submit a revised 

budget with support for all proposed costs. NSF disagreed with this 

recommendation and also stated that it had provided management 

fee and awards for the construction or operation of large facilities 

for years. 

In light of the problems with the NEON budget, we commissioned DCAA to audit NEON’s accounting system. As the audit was 

proceeding, DCAA informed us that management fee had been 

awarded and used for unallowable costs, including $112,000 for lobbying and $25,000 for a holiday party. We investigated the allegations and referred them to the Department of Justice, which declined to accept the case for further investigation or prosecution. 

We have added a review of the awarded use of management fees 

to our Fiscal Year 2015 audit work plan. 

It is essential for cost information for proposed budgets to be accurate, current, and adequately supported because the budget is 

the basis for charging costs in NSF. The problems we found with 

the budgets were not limited to the NEON project. In fact, we 

found that NSF approved proposed budgets for four major projects 

totaling more than $1.4 billion although significant questions existed as to the adequacy of those budgets. As a result, while NSF 

knows what it will spend on these projects, it is not clear whether 

it knows what they should cost. 

As we work to resolve recommendations made on audits of proposed costs for NSF’s large facility projects, we identified broader 

weaknesses in NSF’s pre- and post-work monitoring processes for 

high-dollar, high-risk projects and compounded our concern that 

unallowable costs could be charged to awards. We recommended 

that, at a minimum, NSF increase monitoring for its largest cooperative agreements valued at $50 million or more. In our judgment, 

the actions NSF has proposed to take to address OIG recommendations in this area fall short of the standard necessary to adequately 

safeguard federal funds and leave millions of dollars at risk. 

As a result, in May we escalated the unresolved recommendations. We took this step in light of the serious risk to federal funds 

posed by NSF’s current processes and practices. NSF did not sustain our recommendation to require awardees to remove contingency from proposed budgets. We are awaiting NSF’s decision on 

the remaining recommendations. 

We target our work to areas that pose the highest risk of misuse 

of taxpayer dollars and can lead to funds used inappropriately 

being returned to the government. To that end, our Fiscal Year 

2015 audit work plan includes incurred cost audits and accounting 

system audits of more than 10 awardees, as well as the focus on 

the use of management fees. Incurred cost audits are critical to 

proper monitoring and can reveal costs claimed that are unallowable or unreasonable. 
14 

We have been urging NSF for the past four years to strengthen 

accountability over its high-dollar, high-risk agreements for large 

facility construction projects. NSF applies its highest level of attention and scrutiny to determine the scientific merit of the projects 

it decides to fund. It is imperative that it applies the same rigorous 

attention and scrutiny to its financial management of these 

projects. The stakes are too high for the foundation to continue its 

current practice of making awards before it ensures that project 

costs are reasonable, are supported by adequate documentation, 

and will use taxpayer dollars efficiently. And I would be happy to 

answer any questions. 

[The prepared statement of Ms. Lerner follows:] 
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Chairman SMITH. Thank you, Ms. Lerner. 

Ms. Bales. 

TESTIMONY OF THE HONORABLE ANITA BALES, 

DIRECTOR, DEFENSE CONTRACT AUDIT AGENCY 

Ms. BALES. Chairman Smith, Representative Johnson, and Members of the Committee, thank you for the opportunity to appear before you today. I have submitted written testimony for the record, 

and this morning I want to provide you a brief overview of DCAA 

and its audit role with the National Science Foundation and the 

National Ecological Observatory Network, which I shall refer to as 

NEON. 

DCAA performs contract audits for DOD components and other 

federal agencies to help ensure contractors comply with government contract regulations. Based on its audit findings, DCAA 

makes recommendations to contracting officers who then make 

final contract decisions based on their assessment of those recommendations. The National Science Foundation requested 

DCAA’s help with NEON, a nonprofit organization required to follow the cost principles in OMB Circular A–122 for determining 

costs of grants, contracts, and other agreements. 

DCAA performed two significant audits at NEON. First, at the 

request of the NSF Inspector General, in August 2011 DCAA attempted to perform a proposal evaluation of NEON’s cooperative 

agreement for major research equipment and construction of the 

National Ecological Observatory Network. Despite significant coordination with NEON, DCAA was not able to perform an audit because of several inadequacies in this proposal. 

About a year later, DCAA began an audit of a revised proposal. 

While there were still major inadequacies associated with this proposal, DCAA was able to issue an audit report in September 2012. 

Of the roughly $434 million proposed by NEON, DCAA questioned 

about $102 million and concluded that an additional $52 million 

was unsupported. Questioned costs are costs the auditor considers 

not acceptable for negotiating a reasonable contract price or not acceptable for reimbursement. Unsupported cost denotes instances 

where the contractor has not provided specific evidence or documentation to support assertions. 

The inadequacies noted in our audit report were significant 

enough for us to recommend that the proposal not be considered acceptable as a basis for negotiating a fair and reasonable cooperative 

agreement price. 

It is also important to note that our proposal review of NEON 

was different from our normal forward pricing reviews in two respects. First, we were asked to review the proposal more than 7 

months after the cooperative agreement had been awarded and a 

price established. Normally, contracting officers request a proposal 

audit before the award so they can make use of the auditor’s recommendations to negotiate a fair and reasonable price. Second, we 

were asked to perform for the NSF IG. Audit requests normally 

come from the contracting officer who was responsible for awarding 

the contract and has the ability to make changes in response to the 

recommendations. 
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In addition to the forward pricing proposal and also at the request of the NSF IG, we reviewed NEON’s accounting system and 

issued our report in October 2014. Our audit disclosed a material 

noncompliance with NEON’s timekeeping system. Specifically, 

NEON’s actual timekeeping practices did not comply with its written policies and procedures. 

Our audit also disclosed two material noncompliances with Circular A–122 that were corrected during the course of our fieldwork. 

First, NEON failed to comply with the requirement that organizations receiving more than $10 million in federal funding of direct 

cost in a Fiscal Year must break out indirect costs into two broad 

categories: facilities and administration. Prior to our audit, NEON 

had reported these indirect costs together. Second, NEON excluded 

unallowable costs from the general and administrative overhead 

base. Unallowable costs must be included in the G&A allocation 

base so they absorb their share of an organization’s indirect expenses. Our field work verified that NEON corrected both of these 

conditions after we identified them. We also issued a management 

letter to the NSF IG that recommended potential improvements in 

NSF’s internal controls over contract costs. 

In closing, let me assure you that we are committed to providing 

NSF and all civilian agencies with high-quality audits that protect 

the interests of the American taxpayer. Moving forward, we would 

like to work with NSF acquisition or grants managers and the IG 

through the normal contracting process to provide comprehensive 

contract audit services for NEON and other NSF contractors. 

I appreciate the opportunity to testify before you today and I will 

be glad to respond to questions. Thank you. 

[The prepared statement of Ms. Bales follows:] 
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Chairman SMITH. Thank you, Ms. Bales. 

Let me recognize myself for five minutes for questions. And while 

I will direct my first question to Ms. Lerner, Ms. Bales, if you will 

respond as well and we will go back-and-forth. 

Ms. Lerner, the question is this: In my opening statement I cited 

a number of examples of what I would consider to be a misuse of 

management fees. And let me just focus on one. By the way, the 

total cost of this misuse of management fees in my opinion is close 

to a half a million dollars. I mentioned one. Let me go back to that. 

And that was a holiday party last year that cost $25,000, which 

amounted to about $140 for every person who attended. Other 

agencies have written rules against using taxpayers’ dollars for 

these types of expenditures. Does the National Science Foundation 

have any similar kind of rule, and if not, why not? 

Ms. LERNER. I am not aware of any specific rules that the Foundation has. Obviously, cost principles that would apply to the 

awards that are funded by the Foundation would generally prohibit 

expenditures on parties and food. 

Chairman SMITH. Okay. Thank you. And, Ms. Bales, do you want 

to add anything to that? I might add that, for instance, NASA has 

a rule that prohibits use of dollars for anything like this and other 

agencies have similar types of rules. But do you have any recommendations for the National Science Foundation? 

Ms. BALES. We—in terms of the holiday party, it was covered by 

the management fee—— 

Chairman SMITH. Yes. 

Ms. BALES. —and because that is not considered a separate cost, 

we didn’t look at it as a separate cost and looked at it as the management fee. If the fee had been—if the cost of the holiday party 

had been reported separately, we would have questioned that. Our 

recommendation would be to look at the use of management fees 

and what is covered by management fees. 

Chairman SMITH. It is my understanding that for the last several 

years the National Science Foundation has been on notice that a 

lot of its management fees were being used in ways that would not 

be considered appropriate and has ignored past audits at least 

until a few days ago when I think because of this hearing they decided to look at some of their practices. In any case, the fact that 

they were warned for several years and did nothing is troublesome 

to me. Do you see the National Science Foundation as following 

best practices when it comes to the use of management fees, Ms. 

Lerner? 

Ms. LERNER. Our office, in an attempt to eliminate a kind of 

murky issue, prepared a white paper that looked at the history of 

management fees in the Federal Government. They go back about 

as long as I do, to 1960s, and because of the lack of clarity about 

what management, they are intended essentially to help entities 

that primarily do business with the Federal Government and that 

in order to maintain financial viability need to have some ability 

to be reimbursed for expenses that would ordinarily be un-reimbursable. 

Chairman SMITH. Okay. 

Ms. LERNER. So they are intended to reimburse un-reimbursable 

expenses, but there has been controversy over time because no one 
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has set limits on what those normal and ordinary expenses should 

be and sometimes you find situations—— 

Chairman SMITH. Don’t most agencies set limits but the National 

Science Foundation has not? 

Ms. LERNER. I don’t know that anyone has concrete limits. I 

know some people—the Department of Defense looks very carefully 

at the amounts that are proposed. I don’t know that they set actual 

limits. We did not identify any concrete limits on what you could 

use a management fee for in our effort to assess—— 

Chairman SMITH. Okay. 

Ms. LERNER. —the landscape. 

Chairman SMITH. Other than an example—in the specific examples that I gave you, clearly those would be inappropriate if they 

had been itemized—— 

Ms. LERNER. It is hard for me to see that a holiday party is a 

normal and ordinary operating expense. 

Chairman SMITH. Okay. Thank you. 

Ms. Bales, let me ask a couple questions and direct them to you 

first. Let’s go to the subject of construction contingency. That is 

normal practice. You set aside a certain percentage for contingencies, 18, 19 percent, sometimes 20 percent. But what is different 

about the National Science Foundation here? And if you will go 

into a little bit of detail in regard to NEON, their contingency I 

think started at $60 million, went up to $74 million. To my knowledge those expenses were not justified, were not itemized, and were 

not documented, which I think is fairly highly unusual. But if you 

will just comment on the practice of the National Science Foundation when it comes to the way they handle the construction contingencies. 

Ms. BALES. The National Science Foundation has guidance that 

allows for the use of contingency in budget, so as part of their 

budget process, they will include here is the cost and then here is 

an amount for contingency. And when that money has been awarded—or the cooperative agreement or a grant is awarded, the money 

goes to the awardee and then the—there are practices in place 

where if there has to be, say, the limit is over 250,000 and it needs 

to be reallocated, that then has to be improved by—approved by 

NSF management. So—— 

Chairman SMITH. And what about the increase from the 60 to 74 

and was that documented or was that—were they sort of operating 

without many rules and restrictions? 

Ms. BALES. The—we did the proposal audit and looked at those 

contingency fees. Part of the issue was the basis for how much was 

being included in the contingency was not well documented. 

Chairman SMITH. Okay. Thank you, Ms. Bales. That concludes 

my time. 

The gentlewoman from Texas, Ms. Johnson, is recognized for her 

questions. 

Ms. JOHNSON. Thank you, Mr. Chairman. 

Ms. Lerner, on August 21, 2014, the Office of the Inspector General of the Department of Defense released an evaluation of 

DCAA’s quality control system. The review found numerous instances where DCAA failed to properly document its audit conclusions, as required by the generally accepted government auditing 
41 

standards and the statements on standards for attestation engagements of the American Institute of Certified Public Accountants. 

This resulted in DCAA receiving a rate of ‘‘pass with deficiencies’’ 

indicating that DCAA still has serious work to do in order to fully 

comply with the relevant professional standards. 

On September the 8th, 2014, the DOD IG released a report that 

found one or more significant deficiencies in over 81 percent of 

DCAA’s audits from Fiscal Year 2012 and 2013 sampled as part of 

the review. On September the 17th, 2014, Kellogg Brown & Root 

Services Incorporated, KBR, filed a suit against the United States 

Government in federal court seeking to recover $12.5 million in 

legal fees incurred by KBR in defending against findings from a 

flawed DCAA audit. Were you aware of these significant adverse 

findings regarding the quality of DCAA’s audit work and are you 

at all concerned with relying on DCAA audit findings in your own 

work? 

Ms. LERNER. I would say a ‘‘pass with deficiencies—— 

Ms. JOHNSON. I am sorry? 

Ms. LERNER. Sorry about that. A ‘‘pass with deficiencies’’ is not 

the outcome that anyone would seek in a peer-review process so 

that is a matter of concern. But when our office has DCAA do work 

for us, we have audit monitors that oversee the work that they do 

to—and, you know, I feel that if they had identified issues, we 

would have followed up with DCAA and attempted to ensure that 

those concerns were addressed. So it is a matter of concern but I 

do think we have some controls in place where we attempt to ensure the quality of the work that is done for us. 

Ms. JOHNSON. Ms. Bales, committee staff have heard from numerous entities audited by DCAA auditors in the last few years 

that there were significant communication problems that resulted 

in millions or hundreds of millions in questioned costs that in some 

cases have already been resolved down to a few hundred thousand 

dollars. We have heard the same type of complaints from all of 

these entities, namely that the auditors were unclear or incompetent in their request and that they failed to work with an audited entity in a transparent way that might easily have resolved 

the misunderstandings that led to significant questioned costs. 

In the meantime, the reputation of world-class research institutions have been put at risk. Given that there is one common party 

here and that is DCAA, I am inclined to attach significant weight 

to these complaints and I am concerned that DCAA does not have 

the staff expertise or experience with grants and cooperative agreements or with the science construction projects. Are you aware of 

these complaints from these entities audited by your agency on behalf of NSF IG or have you taken any steps to address the concerns 

going forward? 

Ms. BALES. I am not aware of the specific complaints that you 

are referring to from the NSF entities that we have audited. No 

one has raised those to me. However, over the time frame we have 

entered and issued what we call rules of engagement to our audit 

staff that does encourage them to communicate with both the contractors or grantees that we audit, as well as the contracting officers to make sure that as we go through our audits, everyone is 

aware of what we are doing, that we issue draft reports and find-
42 

ings and have those discussions as we go along so that if there are 

issues, that maybe misunderstandings, that we have those discussions as we go through. 

If specific complaints do come to my attention, we respond to 

those and look through them and see is there really a valid complaint there and how do we work through that? 

Ms. JOHNSON. So you have not heard of any of these complaints? 

Ms. BALES. Not the specific—I mean you are talking complaints 

specific to NSF, correct? 

Ms. JOHNSON. Yes. 

Ms. BALES. Yes. No—— 

Ms. JOHNSON. And you haven’t heard about any of them? 

Ms. BALES. None of the NSF awardees have come to me to say 

that my auditors are not working with them and that they are not 

understanding what we are saying. 

Ms. JOHNSON. Thank you. I yield back. 

Chairman SMITH. Thank you, Ms. Johnson. 

The gentleman from California, Mr. Rohrabacher, is recognized 

for his questions. 

Mr. ROHRABACHER. Thank you very much, Mr. Chairman. 

And, Mr. Chairman, I would like to thank you for holding this 

hearing. I think that our oversight responsibility is of tremendous 

importance to the people of the United States. If they are to have 

faith in their government and faith in this Congress, they have to 

know that we are doing our job and this oversight hearing is part 

of the job and the task of these witnesses today is to ensure that 

the American people know that their hard-earned money is not 

being wasted. 

And quite frankly, attacking the people who are doing an investigation is not a refutation of the findings of an investigation or 

does it justify any type of, let’s say, holding back on the part of investigators. In fact, we should be encouraging our investigators 

rather than try to find fault with them. Let’s find out whether or 

not what they have to say is something that is going to be significant to the taxpayers or not. 

In this case, what we have here is 36 percent of a budget was 

found to be—have an unacceptable level of accounting. This budget 

was 435—$434 million and that is a very significant sum for American people who are struggling to make—to pay their own bills at 

home. So we—no one should be making light of this or trying to 

focus their efforts on undercutting the people who are trying to see 

if we are spending our money correctly or not for our taxpayers’ 

money correctly or not. 

Now, it seems to me that what we have here—this is not—a complaint over on the other side of the aisle seems to be that this was 

too late and it was premature at the same time, this investigation. 

Well, I guess too late and premature means it was just about right. 

So let’s get down to some of the details here. Let’s make it very 

clear, the money that we are talking about here, this 36 percent 

of the budget, that money, out of a $434 million budget, that reflects money that comes directly from National Science Foundation 

research funds, does it not? 

Ms. LERNER. It does. 

Mr. ROHRABACHER. Okay. So what we are talking about here—— 
43 

Ms. LERNER. Well, MREFC funds. 

Mr. ROHRABACHER. Okay. Well, so what we are talking about is 

important research funds that have been allocated for research 

that may have been going to lavish parties, to trips to various 

places, lobbying—as well as lobbying efforts, that we are using taxpayers’ funds for lobbying efforts and lavish Christmas parties. 

This is very much important for us to look into—because it sends 

a message to other government agencies that we don’t want—not 

only do we not want our research funds misused but we don’t want 

any government funds to be misused simply because we are going 

through contractors here. 

Let me ask Ms. Lerner. When your office raised this—these 

issues with the National Science Foundation about the concerns 

about this major research facility costs and the costs described in 

your testimony, has the National Science Foundation done anything in response to your findings rather than trying to attack you 

as the investigator? 

Ms. LERNER. They have made changes. They—when we started 

looking at contingency amounts, initially the threshold for which 

NSF approval had to be sought was $250-$200,000 for many 

awardees, so, you know, most amounts were under that. When we 

surfaced this issue, NSF did lower the amount that—— 

Mr. ROHRABACHER. Okay. So now people don’t have as much—— 

Ms. LERNER. —required approval. 

Mr. ROHRABACHER. People don’t have as much discretion—— 

Ms. LERNER. Exactly. 

Mr. ROHRABACHER. Okay. That is fine. 

Ms. LERNER. So they did do that. 

Mr. ROHRABACHER. Well, did you find that the National Science 

Foundation either explicitly or implicitly allowed NEON, the group 

that we are talking about now, this contractor that we are talking 

about, to use these management fees for lobbying and—or liquor or 

lavish Christmas parties or any of the other expenditures that are 

very questionable? 

Ms. LERNER. The record seems to—you know, the record reflects 

that NSF approved a management fee for NEON and NEON used 

that management fee for—— 

Mr. ROHRABACHER. Did they know when they approved it that 

there—that it was going for questionable purposes or is this—or 

they didn’t know? 

Ms. LERNER. I believe the first tranche of management fees, the 

first year’s worth were paid after the fact and there was—so in— 

there was some awareness on NSF’s part for what those expenditures were for. In subsequent years, they were provided a percentage and I don’t know that the agency had clarity as to how the 

management fees were used in those years. 

Mr. ROHRABACHER. Yes, sometimes there is a willful amount of 

knowing certain wrongdoing is going on. 

And, Ms. Bales, the—has the DCAA ever identified the use of 

management fees for lobbying? 

Ms. BALES. No, we haven’t. 

Mr. ROHRABACHER. Okay. Well, thank you very much. Thank 

you, Mr. Chairman, again, for holding this hearing. 
44 

Chairman SMITH. Okay. If the gentleman will yield, and I know 

his time is up, that is a subject for us to revisit because about a 

quarter of a million dollars was spent in lobbying fees, and had it 

been itemized, I think it would have been very, very improper. But 

we will get to those distinctions in a minute. 

The gentleman from Massachusetts, Mr. Kennedy, is recognized 

for his questions. 

Mr. KENNEDY. Thank you, Mr. Chairman, thank you to the witnesses for appearing today. 

And I want to echo the comments of the Ranking Member in her 

opening statement indicating that there are some very much legitimate oversight issues that the Committee can be pursuing with regard to the management and cooperative agreements for large facilities at NSF. I do wish that NSF was a—had been—was here 

today and that I understand that some of the reports that we are 

discussing are preliminary. And so I hope that there will be another opportunity to dive into this in a more comprehensive way 

rather than just being able to touch on the initial findings at this 

point and making sure that there is a balance to the hearing. 

Ms. Lerner, if I can direct the first question at you. You had 

mentioned in your testimony the need for projects such as NEON 

to obtain updated cost estimates before being approved for funding 

by the agency. The design and development of any large facility accounts for roughly ten percent or more of the total project costs I 

believe. At NSF these costs are deducted by—from the research account, I think as one of my colleagues pointed out, which means 

that there are in fact fewer research grants. Some significant fraction of that cost is developing rigorous cost estimates, so estimates 

in order to make those—for those studies. 

Even if we use a conservative estimate, about 10 to 20 percent 

of those design costs, you are still talking about millions of dollars 

a year. Updating those estimates takes a significant amount of 

time, effort, energy, financial resources, money, perhaps sometimes 

months because it requires project management to go back again 

into each and every one of the vendors and continue to redo these 

estimates. 

So when it comes to managing project risk, isn’t there a tradeoff between approving potentially outdated cost estimates and the 

increased cost and time required to update those estimates over 

and over and over again, particularly for a major project for final 

design review? There is also analytical tools available to develop 

reasonable costs and models for escalation for final proposal, and 

NSF I believe makes use of those tools, so any estimates that are— 

it is still just an estimate when there is obviously some risk involved. 

In the final analysis NSF has concluded that the trade-off that 

I have mentioned favors moving forward with the project even with 

price quotes that might be a bit outdated. Have you come to the— 

you have seem to have come to the opposite conclusion and I would 

just like to understand how you arrived at that conclusion. Is there 

any OMB guidance on a date of expiration for those cost estimates 

for construction projects? It says after 6 months, a year, 18 months 

that it should be reevaluated? 
45 

Ms. LERNER. I am not aware of any specific hard and fast time 

frame but I do think that some of the concerns that we—that were 

found in the audits that were conducted for us were when estimates were used that were 4 and 6 and eight years old and—— 

Mr. KENNEDY. What—if I can ask—— 

Ms. LERNER. Um-hum. 

Mr. KENNEDY. —what do you think would be a reasonable time 

frame in order to reevaluate those costs? Would it be 6 months, a 

year, two years. Do you have some basis in there to say—or are 

there external factors that you look at—— 

Ms. LERNER. You know, I—— 

Mr. KENNEDY. —the economy, inflation? What triggers that reanalysis? 

Ms. LERNER. I think it is probably not a one-size-fits-all because 

different costs you have to look at differently, but I would say, you 

know, you wouldn’t want to go—I think you could definitely go 

back a year and potentially even two years, but when you are back 

much beyond that, then the quality of the estimate is weakened. 

And I think the important thing is when a final decision is made 

to fund a project that you have a really good sense of what that 

project is going to cost. And what we have seen is, because of the 

risks, one of the reasons that we have large amounts of contingencies is to address uncertainties with respect, you know, to costs 

over time. And so—— 

Mr. KENNEDY. So I understand you correctly just so that I do, 

you are saying that there is essentially no one size fits all, that it 

is a—and no particular factor that you can point to to say this 

should trigger a reevaluation or not but kind of a totality of the circumstances, evaluation of it. Do you have—can you point to any 

particular factors that would go into that analysis to provide some 

guidance to NSF or anybody to say these are the factors that we 

should be looking for before we make this reevaluation? 

Ms. LERNER. Certainly. I think you want to look at the age of the 

estimates, you want to look at the quality of the estimates. Sometimes there were costs that were questioned because there was— 

the cost was—a portion of it was supported by an estimate but a 

portion of it was just kind of someone’s best guess as to what 

things would cost. And so the more you are relying on concrete 

cost-related data to support your costs, the more—the greater the 

likelihood is that you will have a good idea of what those costs 

should be. 

Mr. KENNEDY. So you are calling into question the underlying— 

the initial estimate because you are saying that wasn’t done properly? 

Ms. LERNER. In some instances. 

Mr. KENNEDY. Okay. Chairman, I yield back. 

Chairman SMITH. Thank you, Mr. Kennedy. 

The gentleman from Indiana, Mr. Bucshon, is recognized. 

Mr. BUCSHON. Thank you, Mr. Chairman. 

Ms. Lerner, were the—these reports preliminary, as has been described, the reports that you have done? 

Ms. LERNER. The audits that were issued by DCAA were not preliminary. There were some initial inadequacy memos but then the 
46 

final 2012 audit was final and the accounting system audit is final 

as well. 

Mr. BUCSHON. Okay. So to clarify again the reports are final reports, not preliminary—— 

Ms. LERNER. Correct. 

Mr. BUCSHON. —evaluations. And as far as that goes, does—do— 

whoever wants to take this, did the NSF know that money was 

being spent for lobbying services? 

Ms. BALES. I believe that there was—in the first year of the management fee in the NEON project there was a statement that certain funds would be used for government outreach I think was how 

it was characterized. I don’t know if that—if NSF read that and 

understood that to mean lobbying. I am not sure that they saw 

more than that particular document. 

Mr. BUCSHON. Okay. So that information was available about— 

I mean I have the breakdown here in front of me. 

Ms. BALES. Right. That is from the accounting records of NEON. 

Mr. BUCSHON. That is available. 

Ms. BALES. Yes. 

Mr. BUCSHON. I don’t have any other questions but I will make 

a brief comment. 

I am looking forward to the next Congress and the testimony 

that will be provided to the Committee by NSF. As most of you 

know, I was the Chairman of the Research and Technology Subcommittee, and on that subcommittee there has been some resistance from National Science Foundation as it relates to transparency and I hope that that does not continue. For example, in 

some instances we have been asked to come to National Science 

Foundation to review documents rather than have them released, 

and at that time much of what is in the documents has been redacted. 

And so I do think that Congress has a very important oversight 

role and I fully support the National Science Foundation’s ability 

to make judgments on which scientific studies should be funded. 

All I think we are asking for is the justification and that is part 

of our oversight, which is extremely important. 

With that, Mr. Chairman, I yield back. 

Chairman SMITH. Okay. Thank you, Dr. Bucshon. 

The gentlewoman from Oregon, Ms. Bonamici, is recognized for 

her questions. 

Ms. BONAMICI. Thank you very much, Mr. Chairman. And thank 

you to both of our witnesses for being here at the committee today. 

There are few issues that spark the ire of our constituents more 

than the potential misuse of their hard-earned tax dollars, and we 

hear about that, so I hope at least we can clear up some of those 

concerns today. I do want to start by aligning myself with Ranking 

Member Johnson’s comments and Mr. Kennedy’s comments about 

the need to have a more balanced hearing to hear from the NSF, 

so I want to say that I hope we can really have a more balanced 

look at this situation. 

I want to say that the National Ecological Observatory Network, 

NEON, is an ambitious project, we know, with the potential to 

yield significant advancements in our understandings about how 

humans interact with the planet, including the potential threat 
47 

posed by invasive species. This includes collaborations with academic researchers across the country like at Oregon State University in my home State where they have looked at the impact of 

temperature variability on the release of carbon from soils. Deepening our understanding of the Earth’s natural processes and the 

impacts that human beings can have on those processes is essential 

and I hope that this hearing will yield some constructive solutions 

to assist the NSF in developing NEON. So I don’t want us to lose 

sight of the importance of NEON. 

I want to start with Ms. Lerner. In your testimony you stated 

that when DCAA notified you about the use of a management fee 

for unallowable services, you referred the matter to the United 

States Department of Justice but they declined to accept the case. 

Were you given any reason from the DOJ to explain why the case 

was not accepted? 

Ms. LERNER. I don’t believe that we were. I mean sometimes, you 

know, there are any number of reasons that the Department of 

Justice chooses not to proceed with an investigation. And I don’t recall that we received express—explicit feedback on that point. 

Ms. BONAMICI. And I want to follow up on Ms. Johnson’s line of 

questioning a bit earlier. In preparing for the hearing, I heard concerns from various entities that DCAA may not have the technical 

competency to accurately assess a major science construction 

project like NEON. And as—you know, and with due respect to Ms. 

Bales, DCAA was established to audit DOD contracts. And in fact 

when I was reading Ms. Bales’ bio, it really talks about the Department of Defense. So did you ever consider having a different auditor look at—into this particular project? Can you follow up on that 

a bit and discuss that? 

Ms. LERNER. At the point at which we were doing these audits, 

we were primarily using DCAA for that type of audit support. We 

have other options now. But I would say I have heard many concerns, some raised in this hearing, about the approachability and 

the interactions that DCAA auditors had with NEON and with 

other auditees, and I went back and spoke to our monitors and I 

just want to clarify that there was a great deal of conversation and 

back and forth between my staff, the Foundation’s staff both from 

the program and from the Budget, Finance, and Accounting Division, NEON, and DCAA about what the purpose of the audits were, 

what the findings were. 

When we had these series of proposal audits done, that all came 

to a conclusion with a lack of—with real concerns raised about contingencies. In particular, we heard back from the auditees. We 

have the information. DCAA didn’t ask the right questions or talk 

to the right people, and so we said all right. If there was—a process 

fail, we will go back. So, we sat down, all of us, and talked about 

those three awards and we went back to each of the entities to do 

a deeper dive. And we had a great, you know, people from all the 

concerned parties around the table at the initial deeper dive. We 

sent audit folks to Denver to meet with the NEON staff, DCAA 

representatives were there, NSF folks and additional people from 

our office filed in from Boston and I believe even the financial 

statement—— 
48 

Ms. BONAMICI. Ms. Lerner, I don’t mean to cut you off but I want 

to—— 

Ms. LERNER. Right. 

Ms. BONAMICI. —I just have a few seconds left—— 

Ms. LERNER. Sure. Sorry. 

Ms. BONAMICI. —and I want to ask—— 

Ms. LERNER. There was a lot of communication. 

Ms. BONAMICI. I understand. Ms. Bales, during the initial audit 

of NEON’s accounting systems, DCAA found eight instances of noncompliance with federal requirements, including the use of management fees for some unallowable costs. But in the final 2014 

audit only one instance was included and that focuses on 

timekeeping and did not mention management fees. Can you explain why the initial findings did not make it into the final report? 

Ms. BALES. Specifically to the management fee, that was really 

not with—totally within the scope of an accounting system, but 

once we saw that the management fee was being used for those 

type of expenses, we can’t not report that. So we reported that in 

a separate memorandum and—rather than including it in the report related to the accounting system because of the scope of what 

an accounting system audit is. And the other findings—we identified two findings that had been corrected by NEON during our 

fieldwork and there were other findings that, as we looked through 

the supervisor review process, that there needed to be additional 

work and that work was done and they were not continued to be 

supported. 

Ms. BONAMICI. Thank you. And my time is expired. I yield back. 

Thank you, Mr. Chairman. 

Chairman SMITH. Thank you, Ms. Bonamici. 

The gentleman from Kentucky, Mr. Massie, is recognized for his 

questions. 

Mr. MASSIE. Thank you, Mr. Chairman. 

This question is for Ms. Bales. Given the number of issues that 

were discovered in the NSF audits, how does that compare with 

other audits that have been done by DCAA? 

Ms. BALES. Other audits just in general or—— 

Mr. MASSIE. Like other agencies, do they have a similar number 

of issues that are significant or questionable with unsupported 

costs? 

Ms. BALES. It is really very different based on—— 

Mr. MASSIE. I mean—— 

Ms. BALES. —contract to contract, organization to organization, 

and it really—it is hard to make a general conclusion in terms of 

the number of problems because there is just such a wide range of 

different types of audits that we do and different contractors. We 

do frequently find issues as we go through contracts in terms of the 

same number. That is really hard to answer. 

Mr. MASSIE. In general though, were these—do you find this 

across government? Is this an epidemic that we have? 

Ms. BALES. When you say ‘‘this,’’ do you mean the—— 

Mr. MASSIE. The—— 

Ms. BALES. —management fee type issues or—— 

Mr. MASSIE. Yes, all of the things that you found in the audits— 

that were found in your audits. 
49 

Ms. BALES. We do find—frequently we find problems with accounting systems and we work through those. We find—often, you 

know, one of the things is we are working through a lot of proposals. We have a lot of inadequacies. As we talk with other contractors, we say one of the things that you as the contract community can really help us out in doing our job is making sure that 

your proposals are adequate. So it is—different inadequacies in 

proposals are common. 

Mr. MASSIE. Well, let’s talk about the proposals then. Is it normal to audit a proposal and then have that proposal accepted before the audit is finalized? 

Ms. BALES. Normally, no, because again as—the purpose behind—— 

Mr. MASSIE. Why was that done here then? 

Ms. BALES. When we accepted the audit and in talking with the 

NSF IG, there was still the ability—even though the cooperative 

agreement had been awarded, there was still the ability to have an 

impact on the price so they could go back in and make an adjustment. But normally we would do that ahead, before the negotiation 

happens on the issuance of a contract or grant or an award because, as we look at that proposal and we find different things to 

question or that aren’t supported, that provides the contracting officer or the grant manager the ability to go into that negotiation 

with information that allows them to really do a good negotiation 

to get a fair and reasonable price. If the contract had been finalized 

and there wasn’t the ability to reopen and go in and make adjustments to the price, then we really wouldn’t have a value to add in 

reviewing a proposal after it had been awarded. But there was, as 

the IG indicated to us, an ability to go back in and affect the 

amount of this cooperative agreement. 

Mr. MASSIE. Okay. This question is for Ms. Lerner or Ms. Bales 

or both. In reviewing the audits, what appears to be the source of 

the issues? I mean is it that—is it NEON for not doing a sufficient 

job of maintaining the books or is it the NSF for not conducting the 

responsible oversight? Ms. Lerner, would you care to answer? 

Ms. LERNER. I think ultimately the costs proposed are proposed 

by NEON and they were not supported in ways that they should 

have been to be compliant with OMB’s Circular A–122. I would 

imagine that NEON would say that what they were doing was compliant with NSF’s Large Facilities Manual but, you know, the 

Large Facilities Manual and the cost principles should both support each other and not to be in conflict. 

Mr. MASSIE. So to answer that question, you think it is more on 

NEON’s noncompliance with the standards for accounting? 

Ms. LERNER. I mean ultimately it was their proposal. 

Mr. MASSIE. Um-hum. 

Ms. LERNER. So I think you have to—they have to be the ones— 

they were the ones who made the proposal. NSF had a role in providing guidance through the Large Facilities Manual but it was 

NEON’s proposal. 

Mr. MASSIE. Thank you. And, Ms. Bales, what is your opinion of 

that? 

Ms. BALES. I would agree with Ms. Lerner. In terms of the proposal, it is the responsibility of the service provider to put together 
50 

a proposal that can’t, from our perspective, be audited and allows 

the contracting officer or grant manager to know what is coming 

in and be able to make a decision on. 

Mr. MASSIE. Thank you. And I yield back 1 second. 

Chairman SMITH. Thank you, Mr. Massie. 

My colleague from Texas Mr. Veasey is recognized for questions. 

Mr. VEASEY. Thank you, Mr. Chairman. 

I wanted to ask Ms. Lerner a question. Ms. Lerner, according to the NSF, the agency sustained $20 million in questioning cost from 

NEON’s proposal. This contradicts the statement that you made in 

your written testimony when you implied that NSF upheld the full 

proposal in April 2014. NSF further told us that they have been 

unable to take any steps to reduce NEON’s total budget accordingly because you escalated your finding to the agency’s audit follow-up official who must now weigh in before any further action 

can be taken. Were you aware that NSF in fact sustained nearly 

$20 million in question costs? 

Ms. LERNER. We are aware of that now. 

Mr. VEASEY. Okay. And also I wanted to ask you another statement that was made a little bit earlier. I understand that you feel 

very strongly about your views on contingency funds and of course 

there has been some disagreement, you know, with that. When you 

had the opportunity to make your case before the OMB, it seems 

to me that you were overruled. Is there a specific OMB regulation 

that you believe NSF to be in violation of? And if—and I actually 

have a copy of the text if Members would like to see it, but I just 

wanted to get your opinion on that as well. 

Ms. LERNER. If you look at the—are you speaking about the new 

provision in the uniform guidance? 

Mr. VEASEY. The—okay. It was December 26. 

Ms. LERNER. Yes, it is the uniform guidance. 

Mr. VEASEY. Yes, right, exactly. 

Ms. LERNER. The change that was made there added a Section 

B that speaks specifically about the ability to have contingencies in 

budget estimates and that has never been the concern of my office. 

Our concern has been with the final provision of that section subpart C, which says payments made by the federal awarding agency 

to the nonfederal entity’s contingency reserve or any similar payment made for events, the occurrence of which cannot be foretold 

with certainty as to the time, intensity, or with an assurance of 

their happening, are unallowable. 

What we see with contingencies at NSF is that they accumulate 

them WBF level by WBF level into a large reserve, and those—the 

contributions to that reserve, many of them don’t meet the certainty requirement that is set forth in that subparagraph. And so 

that has been our concern, not—we have never taken the position 

that you cannot have contingencies in a budget, simply that when 

you make a contribution to a reserve, there needs to be certainty 

as to the factors set forth in the principal. 

Mr. VEASEY. Okay. All right. Okay. Well, let me just—can I—if— 

do you mind, very quickly, if I can just read some of this—— 

Ms. LERNER. Sure. 

Mr. VEASEY. —statement from you a little bit earlier. This is— 

I am going to read directly. Let’s see. ‘‘Some commentators rec-
51 

ommended additional provisions for further clarity on the types of 

costs that are allowable for contingencies and recommended additional controls on how federal agencies provide oversight over these 

funds. In particular, commentators suggested adding a requirement 

to track funds that are spent as contingency funds throughout the 

nonfederal entity’s records. The COFAR reviewed the language and 

concluded that it does provide sufficient controls to federal agencies 

to manage federal awards. The COFAR noted that through a diversity of techniques that are available to establish contingency estimates, the estimates must be based on broadly accepted cost estimating methodologies. Budgeted amounts would be explicitly subject to federal agency approval at time of award and funds will be 

drawn down unless in accordance with all other applicable provisions of this guidance. The actual costs incurred must be verifiable 

from the nonfederal entity’s records. The COFAR considered this 

last requirement to be sufficient for tracking the use of funds as 

contingency funds should be most properly—should most properly 

be charged not as contingency fund specifically but according to 

cost category in which they naturally fall. The COFAR did not recommend any changes to the proposed language.’’ 

Ms. LERNER. Well, with respect to the statement of that the contingencies have to be verifiable from the nonfederal entity’s 

records, that scenario of where we have had concern because while 

we can look at a change log and see that the awardee says that 

they are going to expend contingencies in certain amounts on certain—for certain purchases, we can’t verify that those expenditures 

were actually made in the financial records of the awardees, and 

so that has been an area of great concern to us. When you have 30—you know, $77 million worth of contingencies 

that will be expended but we can’t determine how they are expended in the actual accounting records, that is an area of risk because people can say that they are going to expend it one way and 

then expend it another way and we won’t be able to tell. They can 

also hide, you know, cost schedules with cost—cost overruns in 

ways that we won’t be able to see. So we do have concerns about 

the ability for the—to verify the expenditures from the nonfederal 

entity’s records. 

Mr. VEASEY. Thank you. 

Thank you, Mr. Chairman. 

Chairman SMITH. Thank you, Mr. Veasey. 

The gentleman from Arizona, Mr. Schweikert, is recognized. 

Mr. SCHWEIKERT. Thank you, Mr. Chairman. 

For many of us here, we start to delve into this and we are concerned because we want to see NSF be successful. I mean this isn’t 

beating them up; this is sort of doing our constitutional duty but 

also, you know, it is an organization that is important when they— 

you know, when they hit their mark. 

Ms. Lerner, Ms. Bales, how long have you been in shall we say 

the auditing business? 

Ms. LERNER. Well, I have been in the IG community since 1991. 

Mr. SCHWEIKERT. Ms. Bales? 

Ms. BALES. I have been auditing since 1984. 

Mr. SCHWEIKERT. Okay. So you have sort of been doing it forever? 
52 

Ms. BALES. Yes. 

Mr. SCHWEIKERT. Nothing personal on that. I am actually married to one of your kind so—should I at least be a little bit surprised and maybe I just was a little sensitive to it, some of the reaction of beat up the auditor, I mean how often have you had that 

experience where instead of digging into saying, okay, here is how 

we could fix this, it is, no, let’s beat up the auditor? I was just a 

little surprised at the tone of both some of the questions but also 

some of the things I have seen written. Has that been an experience in the past, I mean shoot the messenger? 

Ms. BALES. Well, having been an auditor forever—— 

Mr. SCHWEIKERT. It is nothing personal. 

Ms. BALES. No, that is fine. 

Auditors—I mean no one is comfortable when an auditor comes 

into their house and so we do tend to be a target when things— 

when people hear maybe what they don’t want to hear. So there 

have been times when, throughout my career, it was like, well, you 

just don’t understand. You don’t have the expertise. You are coming in. So it is not unusual to hear that but then it is our responsibility to go back and show this is how we know what we are doing, 

this is our competence, these are the regulations that we are following—— 

Mr. SCHWEIKERT. But if you have been doing it since the mid- 

’80s, sorry, you have probably seen everything. And, Ms. Lerner, 

have you ever sort of had this sort of personal sort of—— 

Ms. LERNER. Well—— 

Mr. SCHWEIKERT. —pushback? 

Ms. LERNER. —before I was wearing the audit hat, I was a lawyer so I have experienced pushback—— 

Mr. SCHWEIKERT. Is that two strikes against you? 

Ms. LERNER. Pretty much. One more I don’t know what will happen. 

So you have to have a really thick skin and a strong stomach to 

do what we do, and, you know, I—— 

Mr. SCHWEIKERT. But how do we convince—— 

Ms. LERNER. —you sign up for it. 

Mr. SCHWEIKERT. —our brothers and sisters around here we are 

actually doing this for love and success and protecting the taxpayers and the agency, and sometimes we have got to have these 

honest conversation? 

Ms. Bales, okay, your specialty has been a lot of defense contracts? 

Ms. BALES. Yes. I have been with the Defense Contract Audit 

Agency for about 3–1/2 years. 

Mr. SCHWEIKERT. In modern defense contracts, as you review 

their success, their compliance, what would happen if it was a defense contractor that was spending money on alcohol and other 

types—let’s call them externalities? Would that be tolerated in—on 

that side of the world? 

Ms. BALES. If we were to audit a contract and see that there was 

a cost that was reported that was alcohol, use that as an example, 

we would question that cost as unallowable. And this is one of the 

differences between FAR 31, which covers the defense world and to 

kind of respond to the issue about our competency to look at Na-
53 

tional Science Foundation contractors because they are not defense. 

We do understand that FAR covers much more in detail than what 

OMB A–122, which covers the National Science Foundation contractors. But because A–122 does not have that spelled out of what 

is expressly unallowable as the FAR does, but OSD would respond 

to the FAR and it would say alcohol is expressly unallowable and 

we would question that. 

Mr. SCHWEIKERT. So this was nothing personal? It wasn’t a vendetta—— 

Ms. BALES. Absolutely not. 

Mr. SCHWEIKERT. I mean this is just standard practice of how 

you would do your job? 

Ms. BALES. Correct. 

Mr. SCHWEIKERT. In the way you designed your audit, okay, you 

pointed out the number of sins and the misappropriations and 

some of the failure to manage the contractor, but within that, 

didn’t you also provide a series of suggestions of how to solve this 

problem in the future? 

Ms. BALES. We did because one of the reasons because there was 

a management fee and these expenses were covered by a management fee, we did not question them as unallowable because once 

the management fee has been awarded and there has been a determination from management to attach an award fee—or a management fee in that award, we have to audit to the terms of that collaborative agreement contract grant, and because a management 

fee was awarded, there are no restrictions on what the management fee can be used for. 

Mr. SCHWEIKERT. Well, Mr. Chairman, forgive me for going a few 

seconds over. Did you audit in depth sort of the design of the contract? 

Ms. BALES. The design in terms of—— 

Mr. SCHWEIKERT. The reporting requirements, the design, the 

protocols, the mechanics within the agreement? 

Ms. BALES. I would say we don’t audit that in depth because 

our—— 

Mr. SCHWEIKERT. If you—from what you have seen, should we go 

back and delve into those contracts and really break them open 

and do a sort of a forensics within those contracts? 

Ms. BALES. In terms of what costs were incurred, you know, we 

would, at the end of any cost type contract, we would advocate that 

a good oversight is to come in and do and incurred cost audit that 

covers both indirect and direct costs to make sure that the costs 

were in accordance with guidance and in accordance with the 

agreement. 

Mr. SCHWEIKERT. And so that is something we can look forward 

to in the future? 

Ms. BALES. We could. 

Mr. SCHWEIKERT. All right. Thank you, Mr. Chairman. 

Chairman SMITH. Thank you, Mr. Schweikert. 

The gentleman from Texas, Mr. Weber, is recognized. 

Mr. WEBER. Thank you, Mr. Chairman. 

Actually, this is a question—well, first of all, let me just say to 

Ms. Lerner and Ms. Bales, you all do this for a living, is that right? 

Do they pay you to do this? 
54 

Ms. LERNER. Yes, sir. 

Ms. BALES. Yes. 

Mr. WEBER. Okay. Do they take—and I don’t mean to pry. Do 

they take taxes out of your paycheck? 

Ms. LERNER. Yes, sir. 

Ms. BALES. Yes, they do. 

Mr. WEBER. Okay. And you are okay if they double the amount 

they are taking out or would you rather government be run as effectively and efficiently as possible to mitigate any taxes they 

might take out of your paycheck? 

Ms. LERNER. Well, you know, we are in the business of trying to 

pursue an efficient government. 

Mr. WEBER. That is a simple yes. 

Ms. LERNER. It is. 

Mr. WEBER. Yes. 

Ms. BALES. Efficiency, effectiveness, this is what we look at. 

Mr. WEBER. Absolutely. So you have a vested interest when you 

are doing this. And there is something called generally accepted accounting principles—or what do you all call that, GAAP? 

Ms. LERNER. Yes. 

Ms. BALES. Yes. 

Mr. WEBER. Okay. And so you all are experienced in that. And 

so when you go in and you look at this way, it is kind of like David 

Schweikert, my colleague over here said, you know, we are doing 

this for the right reasons. We want to make sure that our taxpayer 

dollars are expended in the wisest, best—bestest use. That is probably not good English but that is what we want. And so I appreciate you all doing that and I, too, echo his comments. It saddens 

me that sometimes the messenger gets shot in that endeavor, but 

thank you for doing that. 

It seems as though it should be a standard operating procedure 

for any federal agency that commits 400 or more billion dollars to 

a construction project to have a cost proposal audit and resolve 

those problems before that construction begins and then also to 

have a post construction audit of actual expenses. Now, that just 

seems to be a good generally accepted accounting principle to me. 

I own an air-conditioning company; I am a business guy. Would 

you all agree with that? 

Ms. BALES. I would. In terms of what we do our audits, we think 

that we can add good value before the audit is awarded by again 

providing information to the contracting officer to be able to go in 

with a good negotiating position and then after the fact to make 

sure that the costs were accurate and allowable, reasonable, and 

allocable. 

Mr. WEBER. Okay. I may have misspoke, 400 million, I am sorry. 

Ms. BALES. Yes. 

Mr. WEBER. But go ahead. You know, 400—a billion here, a billion there, it is real money. Ms. Lerner, what do you think? 

Ms. LERNER. I agree. And we have made both of those recommendations to the Foundation for its large, high-risk, high-dollar construction agreements. You know, step up the—both the preand the post-award oversight. 

Mr. WEBER. Are there plans to perform an incurred cost audit for 

NEON and the other NSF major projects? Do you know? 
55 

Ms. LERNER. You know, do you mind if I look at my—we are 

looking at management fee for this year—— 

Mr. WEBER. Um-hum. 

Ms. LERNER. —but I would assume that down the road we would 

consider auditing—doing incurred cost audits in some of these 

large construction agreements. But we aren’t the only ones. The 

Foundation can also do that. It is not just an oversight responsibility; it is a management responsibility. 

Mr. WEBER. Are you making that request to them? Are you making that a strong suggestion to them? 

Ms. LERNER. We suggested in our alert memo on large cooperative agreements that they do require incurred cost submissions and 

that they undertake incurred cost audits for those types of awards. 

Mr. WEBER. And hopefully if they haven’t had too much alcohol 

on the taxpayer dime they were able to read that and digest it. 

Okay. 

Question for Ms. Bales, if a preconstruction cost proposal audit 

for a DOD project disclosed huge amounts of unsupported and/or 

questionable costs to that particular project, what happens to it? 

Ms. BALES. We turn that information over to the contracting officer and they use that information through negotiations. If the proposal is grossly inadequate, they would probably go back to the 

contractor and ask them to fix the proposal and fix the inadequacies in it so it could be used to negotiate. 

Mr. WEBER. To they come back to you all for approval for the 

changes they make or input—I guess I should say input by you all? 

Ms. BALES. They, the contractor? 

Mr. WEBER. Um-hum. 

Ms. BALES. Yes, if they went back and redid their proposal—— 

Mr. WEBER. Um-hum. 

Ms. BALES. —it would come back to us to audit again. 

Mr. WEBER. Okay. And then you have the ability to say that 

looks better or it looks the same or worse? 

Ms. BALES. Yes. 

Mr. WEBER. Okay. All right. And, Ms. Lerner, in answer to your 

question, three strikes, I guess you could go to work for the IRS. 

But I will leave that alone. 

Thank you all for being here. 

Chairman SMITH. Thank you, Mr. Weber. 

That concludes our questions. And let me thank both witnesses 

for their insightful answers, which are very much appreciated. And 

the responses that we got and your testimony today was both informative, enlightening, and sobering. 

And, clearly, problems within the National Science Foundation 

have existed for many years. And let me say that the new director 

has only been in office for 8 months. I believe that she wants to 

correct these problems and I am hopeful that they will be corrected. But—including the problems that have been there for a long 

time, and as I say, I am hopeful of being able to work with the director and being able to address some of the deficiencies that you 

all have mentioned here today. 

Thank you very much for your testimony and we will look forward to staying in touch. 

[Whereupon, at 11:21 a.m., the Committee was adjourned.] 

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Appendix I 

ANSWERS TO POST-HEARING QUESTIONS
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ANSWERS TO POST-HEARING QUESTIONS

Responses by the Hon. Allison Lerner 
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Responses by the Hon. Anita Bales 
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Appendix II 

ADDITIONAL MATERIAL FOR THE RECORD
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MEMORANDUM SUBMITTED BY RANKING MEMBER EDDIE BERNICE JOHNSON
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MEMORANDUM SUBMITTED BY CHAIRMAN LAMAR S. SMITH
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MEMORANDUM SUBMITTED BY CHAIRMAN LAMAR S. SMITH
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Æ