The Air Force and Space Exploration Technologies Corp. (SpaceX) are headed to mediation this month after a federal judge Wednesday denied contractor United Launch Alliance’s (ULA) Jan. 7 motion to dismiss.
U.S. Court of Federal Claims Judge Susan Braden said in her ruling ULA argued the fiscal year 2015 National Defense Authorization Act (NDAA) ratified the “block buy,” two contracts totaling 36 launch cores and billions of dollars, with incumbent national security launch provider ULA.
ULA, a party in the lawsuit, also argued that SpaceX’s lawsuit as moot as the NDAA included restrictions on awarding or renewing contracts for EELV property or services if the contracts carry out activities using rocket engines designed or manufactured in Russia. ULA uses a Russian-developed engine known as the RD-180 in a majority of its launches.
Contrary to ULA’s claim of the NDAA ratifying the block buy, Braden said the NDAA simply recognized the status quo, that the Defense Department has a pre-existing contractual relationship with ULA and nothing more. Braden also said SpaceX’s interest in the case is not moot because the court could still determine that the block buy violated federal procurement laws or regulations or was arbitrary and capricious.
Braden also said SpaceX’s potential opportunity to compete for mission identified in the appropriations bill or two missions identified in the NDAA may not “completely and irrevocably eradicate (or end) the effects” of the allegedly improper block buy award to ULA. Section 8084 of the appropriations bill provided $125 million for the acceleration of a competitive EELV mission, open to all certified providers, and that competition shall consider bids from two or more providers. ULA is currently the only certified EELV provider. Section 1611 of the NDAA directed the defense secretary to add an additional competitive launch in FY ’15 and another in the timeframe of FYs 2015-2017.
Braden said the Air Force filed motions to dismiss on June 30 and Nov. 25 while SpaceX filed a motion for judgment on the administrative record and that briefings on these motions have completed. Michael Listner, attorney and founding partner of Space Law and Policy solutions in New Hampshire, told Defense Daily Wednesday a motion for judgment on the administrative record is a request for the court to make a decision on the complaint based on the information already provided. Braden also said the court will not rule on these motions until mediation is complete.
Listner said he believed the Air Force had to agree to mediation, which he said provides the appearance of acting in good faith. Listner said going to mediation doesn’t mean anything will be resolved, but it does mean that SpaceX can’t come back and say the Air Force is acting in bad faith through its delay in certifying the company to receive EELV contracts.
SpaceX founder and CEO Elon Musk told Space News earlier this week the service was colluding with ULA to delay certification, which the Air Force and SpaceX have been working on for almost 18 months. The Air Force announced recently that the company was not certified by a critical Dec. 31 deadline to be eligible for certain missions and might not be certified until as late as mid-2015.
In light of the missed Dec. 31 certification goal, Air Force Secretary Deborah James directed an independent team to review the service’s new entrant certification process, though a service spokesman insisted this is a “periodic review” and not one prompted by the missed deadline (Defense Daily, Jan. 7).
ULA did not respond to a request for comment by press time Wednesday. SpaceX spokesman John Taylor declined comment. ULA is a joint venture of Lockheed Martin [LMT] and Boeing [BA].