A federal judge ruled Oct. 21 that NASA may proceed with the performance of its Commercial Crew Transportation Capability (CCtCap) contract awards to Space Exploration Technologies Corp. (SpaceX) and Boeing [BA] while a government watchdog considers a bid protest by Sierra Nevada Corp. (SNC).

U.S. Court of Federal Claims Judge Marian Blank Horn’s verbal decision, confirmed by NASA spokeswoman Stephanie Martin, is a setback for SNC, which wanted work stopped while its bid protest with the Government Accountability Office (GAO) played out. NASA in September issued Boeing $4.2 billion and SpaceX $2.6 billion for CCtCap, the final phase out of four in NASA’s effort to taxi astronauts to and from the International Space Station (ISS) by 2017, wholly-known as the Commercial Crew Program (CCP). NASA currently relies on Russia to get humans to ISS.

A spokeswoman with SNC said the company was disappointed the court did not reinstate GAO’s stay of work proceeding, but that it looks forward to GAO’s ongoing evaluation. Along with SNC, Blue Origin also lost out on CCtCap. SNC proposed its Dream Chaser space vehicle that looked like the Space Shuttle.

A protest typically triggers a stop work on the program until it is resolved, but the government can override such an order under certain criteria.

NASA said Oct. 17 Boeing successfully completed the final milestone of its Commercial Crew Integrated Capability (CCiCap) Space Act Agreement with NASA, the third phase of CCP development. The CCiCap phase facilitated industry’s development of an integrated commercial transportation system. The CCtCap phase will enable NASA to ensure a company’s crew transportation system is safe, reliable and cost-effective, according to NASA.

CCiCap began in August 2012 when NASA announced an agreement with Boeing totaling $460 million to advance the design of the integrated transportation system. NASA added an optional milestone in 2013, bringing the total level of NASA investment in Boeing for CCiCap to $480 million.

Boeing spokesman Adam Morgan said Oct. 22 as the company was the only one to complete the CCiCap phase of Commercial Crew, it is now working on its first milestones under the CCtCap phase. Morgan said this first milestone, completed the week of Oct. 20 (pending NASA approval), is a Certification Baseline Review (CBR), which lays out the program plan and testing.

Martin, the NASA spokeswoman, said Oct. 22 since Judge Blank Horn’s ruling Oct. 21 allowing CCP performance to proceed, Boeing and SpaceX will receive payments upon successfully achieving each contract milestone, including CBR. SpaceX did not return requests for comment Oct. 22.

SNC on Sept. 26 protested NASA’s CCtCap award to SpaceX and Boeing. GAO’s decision is due no later than 100 days following filing, or Jan. 5. SNC Oct. 16 sued to stop work while the company’s bid protest played out.

NASA on Oct. 9 decided to proceed with CCtCap contracts, notwithstanding the bid protest, because it believed stopping work would jeopardize the future of ISS, would delay meeting critical crew size requirements and might have resulted in the United States failing to perform the commitments it made in international agreements. NASA said it has statutory authority to proceed with work, despite the bod protest.

SNC disagreed in its filing, saying NASA’s decision to override the automatic stay imposed by the Competition in Contracting Act was illegal. SNC said NASA failed to establish in its override memorandum that performance of the contract was in the best interests of the United States or that it could not wait until the bid protest ran its course.

Michael Listner, attorney and founding partner of Space Law and Policy Solutions in New Hampshire, said Oct. 22 in the event SNC could appeal the court’s decision, it would be futile as by the time the appeal process played out, it is likely the GAO would have made its protest decision.

Boeing’s winning proposal for CCtCap included its CST-100 capsule while SpaceX’s included its Dragon Version 2 capsule. NASA’s contracts include at least one crewed flight test per company to verify the integrated rocket and spacecraft system can launch, maneuver in orbit and dock to ISS.