Court filing outlines Blue Origin’s case against NASA SpaceX lunar lander award

WASHINGTON — Blue Origin is looking for to overturn NASA’s award of a lunar lander contract to SpaceX by arguing that SpaceX’s proposal failed to satisfy necessities for opinions that made it “unawardable.”

The U.S. Court docket of Federal Claims launched Sept. 22 a considerably redacted model of Blue Origin’s grievance filed with the courtroom Aug. 13. The grievance is successfully an enchantment of the corporate’s protest of the Human Touchdown System (HLS) award to SpaceX that the Authorities Accountability Workplace rejected July 30.

The core of Blue Origin’s argument is that NASA ignored a requirement that bidders embody a flight readiness overview (FRR) earlier than the launch of every component of the lander techniques. Blue Origin alleges that SpaceX didn’t embody FRRs earlier than every “tanker” Starship launch, carrying propellant that might gas the lander Starship. NASA, in later negotiations with SpaceX, did require an FRR earlier than every kind of Starship launch, however that additionally failed to satisfy the necessities of the solicitation, in response to Blue Origin.

Failure to satisfy that requirement was a deficiency that Blue Origin argues ought to have disqualified SpaceX from an HLS award. “The Company’s resolution to pick SpaceX’s poor proposal for preliminary, conditional award, was irrational and in direct violation of the Solicitation’s floor guidelines stating ‘Offerors are hereby notified that proposals evaluated as having a number of deficiencies are unawardable,’” it acknowledged within the grievance (emphasis in unique.)

“We stand by our place that NASA chosen a proposal that was not in compliance with the solicitation. There’s severe questions of safety round that, and that waiver of fabric necessities prejudiced us and Dynetics,” Megan Mitchell, vp of presidency relations at Blue Origin, mentioned in an interview.

The GAO, within the public model of its resolution on the Blue Origin and Dynetics bid protests launched Aug. 10, agreed that NASA erred in not requiring an FRR earlier than each launch of a lander component. Nonetheless, it didn’t maintain the protests as a result of it discovered no proof that the businesses “may or would have modified their proposals to considerably improve their chance of receiving the award had they recognized of the waiver of the FRR requirement.”

Blue Origin disagreed. “Had Blue Origin recognized the Company would waive the FRR necessities and different necessities that drastically affect schedule and threat, Blue Origin would have engineered and proposed a wholly completely different structure with corresponding variations in technical, administration, and value rankings,” it claims. It doesn’t elaborate on what structure would have been, though the passage that follows within the doc is redacted.

The grievance additionally took difficulty with the negotiations NASA undertook with SpaceX after it chosen it, which included addressing the FRR difficulty. The company thought-about {that a} “post-selection negotiation” however Blue Origin argues these ought to be thought-about “discussions” below federal acquisition legislation, which might then have required NASA to carry comparable discussions with the opposite bidders, permitting them to additionally revise their proposals.

“Had the Company held discussions with Blue Origin and revealed its funding limitations to Blue Origin, because it did with SpaceX, Blue Origin would have lowered it value to satisfy these funding limitations,” the corporate states within the grievance. “Blue Origin additionally would have enhanced its technical and administration proposal, and modified its fee schedule to repair purported superior funds.”

SpaceX didn’t reply to a request for touch upon the problems raised within the grievance, however in a tweet SpaceX Chief Government Elon Musk rejected the claims about FRRs. “We at all times do flight readiness opinions! This argument is mindless.”

Most of the particulars within the grievance are redacted. In a single case, Blue Origin seems to counsel one other deficiency in SpaceX’s proposal. “Along with SpaceX’s failure to satisfy Solicitation necessities for FRRs, SpaceX additionally failed” however a lot of the remainder of the paragraph that follows is redacted till the ultimate sentence. “NASA fully missed this error and didn’t assess SpaceX any weaknesses for failure to satisfy this requirement.”

The redaction course of was a supply of frustration for Blue Origin, which had hoped to get a model of its grievance launched as quickly as late August. “The opposite events to the case are redacting vital parts of our submitting,” Mitchell mentioned in an interview earlier than the discharge of the redacted model. The corporate’s attorneys have been working with the courtroom “in ensuring the paperwork will not be over-redacted.”

Blue Origin’s go well with suspended work on NASA’s award to SpaceX by means of the tip of October, a part of an settlement among the many events of the go well with for an expedited overview of the case. Blue Origin requested the courtroom in its grievance to dam additional work on SpaceX’s award, direct NASA to open discussions with all of the bidders and making a brand new choice, and pay Blue Origin’s authorized charges.

Along with the go well with, Mitchell mentioned Blue Origin is constant to foyer Congress to offer extra funding in order that NASA could make a second HLS award. That funding was not included in both the usual annual appropriations invoice within the Home or the Home’s model of a $3.5 trillion funds reconciliation package deal, however she mentioned the corporate was hopeful Senate variations of these payments will provide extra HLS funding. “We’ve acquired lots of completely different irons within the fireplace.”

NASA Administrator Invoice Nelson referred to the case when requested in a Sept. 21 name with reporters concerning the potential to satisfy the purpose of returning people to the moon by 2024 on the Artemis 3 mission. “You probably have a coin, you’ll be able to flip it as to what’s going to occur within the authorized wrangling that’s occurring proper now,” he mentioned. “What’s the federal decide going to determine? When is he going to determine? What are the additional authorized prospects about that?”

“As soon as we all know higher about issues like that, then we are able to reply on Artemis 3.”

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