Blue Origin fails in lawsuit over NASA bid
Blue Origin has lost its monthslong battle to be reconsidered for a NASA contract for transporting astronauts from the moon's orbit to its surface.
Blue Origin's lawsuit in the specialized U.S. Court of Federal Claims challenged NASA'S selection of rival Spacex — and just Spacex — for the contract. U.S. Judge Richard A. Hertling dismissed Blue Origin's complaint, saying the company was unlikely to win the case on the merits, according to a redacted opinion. The judge said even if the company's allegations are true, the Court of Claims was not the proper venue for the remedies Blue Origin was seeking.
NASA initially intended to select two companies to develop commercial human landing systems. It requested $3.4 billion in fiscal year 2021 to accomplish this, but Congress allocated just $850 million for the moon landers. This prompted NASA to select Spacex's proposal at $2.9 billion; Blue Origin's proposal was priced at about $6 billion, and its milestone payments for fiscal year 2021 would have been more than triple the agency's $345 million budget.
The judge wrote that even if NASA'S evaluation had been “improper” or Spacex's proposal wasn't worthy, Blue Origin was not in a position to be awarded the contract because of the funding shortfall.
Blue Origin argued in court documents that NASA had waived critical reviews for Spacex and engaged in improper and unequal discussions by allowing only Spacex to revise its proposal. It asserted that all companies should have had an opportunity to revise their proposals after Congress allocated less money than NASA wanted. Blue Origin also contended that NASA improperly evaluated technical ratings for the lunar landers and conducted procurement in an “arbitrary, capricious, and irrational manner.”
The judge said Blue Origin argued it would have submitted an alternative proposal had it known NASA would waive certain requirements. Hertling called this
proposal hypothetical and speculative.
“Blue Origin is in the position of every disappointed bidder: Oh. That’s what the agency wanted and liked best? If we had known, we would have instead submitted a proposal that resembled the successful offer, but we could have offered a better price and snazzier features and options,” Hertling wrote in his opinion.
Blue Origin founder Jeff Bezos tweeted Nov. 4, the day the court issued a sealed version of the ruling disclosed Thursday that he respects the court's judgment and that he wishes “full success for NASA and Spacex on the contract.”
The ruling this month ended a litigious stretch during which NASA and Spacex were prevented from collaborating on the human landing system — an ordeal that combined with other issues would make reaching the moon in 2024 impossible, according to NASA Administrator Bill Nelson.
“We've lost nearly seven months in litigation,” Nelson said during a news conference last week, “and that likely has pushed the first human landing likely to no earlier than 2025.”
In April 2020, NASA selected Spacex, Blue Origin and Dynetics to lead the development of human landing systems. NASA teams were embedded with the companies as they refined their designs, and then each company submitted a proposal for the next phase of procurement. NASA was expected to move forward with two of the three companies.
According to the court documents, NASA had the right to conduct post-selection negotiations or discussions, and it exercised this right to negotiate with Spacex. The company's proposed fiscal year 2021 milestone payments were a little above NASA'S $345 million cutoff, but it wasn't an insurmountable difference. Spacex adjusted its payment milestones to fall within the budget, though it did not reduce its overall price.
NASA awarded the human landing system contract to Spacex in April. Spacex plans to use the Starship spacecraft its developing in South Texas to transport astronauts from lunar orbit to the moon's surface. NASA'S Orion spacecraft will get the astronauts to the moon's orbit.
Blue Origin and Dynetics challenged NASA'S decision to work
with just Spacex. Bezos also offered to waive all payments in fiscal year 2021 and the next two fiscal years up to $2 billion “to get the program back on track right now.” He said the company was willing to accept a firm, fixedpriced contract. Blue Origin would cover any system development cost overruns and shield NASA from partner cost escalation concerns.
But the Government Accountability Office upheld NASA'S decision, prompting Blue Origin to file its federal lawsuit.
In the future, NASA has said it would like to have multiple companies developing landers that could enable a steady pace of crewed trips to the moon. NASA announced five companies in September that would “make advancements toward sustainable human landing system concepts, conduct risk-reduction activities and provide feedback on NASA'S requirements to cultivate industry capabilities for crewed lunar landing missions.” These companies will ultimately help shape the strategy and requirements for a future NASA solicitation to provide regular astronaut transportation to the moon.