In a 23 Page Report issued Wednesday, July 15, 2009 by the federal VA’s Office of the Inspector General (OIG), the VA calls for the outright termination of a contract providing $75 million for Gulf War illness research.
The $75 million in Gulf War illness research funding was provided to the University of Texas-Southwestern in Dallas through an earmark inserted into a federal appropriations bill by Senator Kay Bailey Hutchison (R-Texas). The research was to be led by Dr. Robert Hailey, a scientist whose breakthrough findings earlier this decade identified three separate syndromes among ill Gulf War veterans.
Citing five dubious reasons why that VA has not followed the law requiring the funding be provided in accordance with the law, the report’s authors coldly state that they believe that there is no option but for VA to terminate the contract "for default."
In most of the years since the funding was earmarked for UT-Southwestern, VA has failed to initiate other meaningful research on behalf of Gulf War veterans.
According to a high-level VA official who wished to remain anonymous, VA officials, particularly in the medical research part of VA, have been extremely hesitant "from the outset" in implementing this program for fear that future VA research might also be "outsourced."
With the program’s apparent demise, it now appears that this parochialism may have led to the successful destruction of the $75 million research project to benefit ill Gulf War veterans.
At the time of enactment of the funding requirement, there was significant discussion on Capitol Hill about VA’s failures to adequately perform medical and scientific research aimed at improving Gulf War veterans’ health. These concerns were seen as the link to the necessity of earmarking the funding outside VA.
Following passage of the Persian Gulf War Veterans Act of 1998 and related legislation, VA failed for years to fully implement the laws. Testifying before Congress in 1999, VA gave reasons — which sound strikingly similar to the reasons in VA’s current OIG report on Dr. Haley’s research — as to why they couldnt’ implement the various laws benefiting Gulf War veterans.
Among those laws that VA failed to implement was the requirement for the creation of Research Advisory Committee on Gulf War Veterans’ Illnesses. VA officials dragged their feet for years, and only instituted the committee after prodding by Congress — long after the statutory deadline.
Nearly seven years later, pressure by Gulf War veterans led Congress to convene yet another investigative hearing regarding VA’s failures with regards to Gulf War veterans. Entitled, "Examining VA Implementation of the Persian Gulf War Veterans Act of 1998," a Subcommittee of the U.S. House of Representatives Committee on Government Reform and Oversight took VA to task yet again.
In the July 15 OIG report, the authors conclude, "Many of the problems we identified could have been avoided if VA was able to treat and administer the earmark simply as a grant. Since VA management chose not to pursue grant authorization, they opted to misuse Federal procurement regulations and policy. We believe that a contract should not have been used to provide funds to UTSWMC or any other entity. If there was a Congressional mandate for UTSWMC to conduct this research, the funds should have been given directly to UTSWMC or VA should have been given, or sought, grant authority."
While there is little mention of any investigative work by VA’s OIG in seeking to determine Congressional intent, Sen. Kay Bailey Hutchison‘s website states:
"In the Fiscal Year (FY) 2006, Military Construction and Veterans Affairs Appropriations Conference Report, Sen. Hutchison directed [emphasis added] the U.S. Department of Veterans Affairs to spend at least $15 million of Gulf War Illness research in FY 2006 and in each of the next four fiscal years, for a total of $75 million. The results of the efforts will help protect the military and civilians from such chemical agent exposure in the future and provide vital basic knowledge from which treatments can be developed."
Despite clear evidence of a Congressional mandate to provide the funds to UT-Southwestern, it is all the more unclear why VA’s OIG, rather than recommending VA seek grant authority, instead recommends outright cancellation of the contract with Dr. Haley and UT-Southwestern.
The summary of the VA OIG’s report is as follows:
"At the request of the former Secretary of Veterans Affairs, we conducted a review of the contract between the Department of Veterans Affairs and The University of Texas Southwestern Medical Center at Dallas (UTSWMC). The contract was awarded for the purpose of conducting research into Gulf War Illness. We concluded that VA was not required by Public Law 109-114 to enter into a contract with UTSWMC nor did VA satisfy the direction provided in Conference Report 109-305.
"The Public Law simply required VA to spend not less than $15 million for Gulf War Illness research and the Conference Report directed VA to enter into a pilot study involving collaborative research with UTSWMC. Our review determined that no pilot study was conducted and there is no collaborative research under the contract. Our review of the contract found that UTSWMC had the responsibility to identify, conduct, and manage all research projects with no input from VA.
"The contract with UTSWMC was merely a funding mechanism to support UTSWMC’s research program, and as such, should have been administered as a grant. However, VA managers decided not to seek grant authority and awarded a contract which inappropriately cited 38 U.S.C. § 8153 as the authority to award a contract to UTSWMC on a sole source basis. The use of § 8153 contracting authority was inappropriate because VA had no defined need for the services and the use of a contract (rather than a grant) created numerous management and contract administration issues for both VA and UTSWMC.
"The most significant issue is UTSWMC’s refusal to comply with the terms and conditions of the contract related to the ownership of the data. UTSWMC unilaterally, and without notice, changed the informed consent form to prohibit VA access to certain data obtained by UTSWMC in conducting the research. VA has issued a cure notice to UTSWMC; however, UTSWMC states that they will not cure the data rights issues contained in the notice and has refused to discontinue use of the revised form and to use the consent form that was agreed to by the parties at contract award.
"We believe UTSWMC’s continued refusal to comply with the terms and conditions set forth in the contract gives VA no option but to terminate the contract for default."