In a motion filed with the Court of Federal Claims this week, the Air Force seeks to dismiss SpaceX’s lawsuit against it protesting the Evolved Expendable Launch Vehicle (EELV) block buy contract the service awarded to United Launch Alliance (ULA), arguing that SpaceX missed its chance to protest the award by two years.
“SpaceX’s complaint is amorphous,” the Air Force motion, filed with the court on Monday, states. “Rather than challenge a single procurement action, SpaceX broadly protests any sole-source purchase of single-core evolved expendable launch vehicles (EELV) and associated launch services.” [emphasis in original] The Air Force argues that the court should narrow the scope of SpaceX’s protest to the latest block buy award.
And, the Air Force goes on to argue, SpaceX should have filed that protest not in late April, but instead back in 2012, when the Air Force issued a request for proposals for what became the block buy contract formally awarded in December 2013. “SpaceX knew about the agency’s intent to award a sole-source contract to ULS, and received a copy of the RFP less than a month after it was issued. Yet SpaceX failed to object—or to indicate that it too could compete for the eventual contract,” the Air Force stated. “Although SpaceX may have ongoing concerns regarding the EELV program that it wishes to explore, SpaceX’s own failure to timely object to the RFP means that it does not have standing to bring those complaints to this Court by challenging what it calls the ‘block buy’ contract.”
The motion then goes to lay out that argument in greater detail, setting out a timeline of events involved in the Air Force’s block buy contract with ULA and the opportunities SpaceX previously had to protest the award, dating back to a “justification and approval” (J&A) the Air Force published through the Federal Business Opportunities website in January 2012. “SpaceX did not protest the J&A at the time it was issued,” the Air Force’s motion states. “Nor did SpaceX protest the J&A at any other point in the two years before it commenced this action.” [emphasis in original]
The Air Force agues that SpaceX lacks standing to protest since it was not an “interested party” to the EELV block buy contract: it was not an “actual or prospective bidder” as defined by law, as it did not object to the original RFP in 2012 or submit a “capability statement” in response to it. “Of course, the reason that SpaceX did not submit such a capability statement—or for that matter, the reason that it did not protest—is obvious,” the Air Force argues. “Simply put, at the time that the Air Force issued the RFP, SpaceX would not have been a qualified bidder” as its Falcon 9 rocket had not been certified by the Air Force.
Although SpaceX has since completed the three successful flights of its Falcon 9 v1.1 that are a key, but not sole, part of the certification process, the company does not have standing now to protest the contract and reopen the procurement, the Air Force claims. “Rather, only now that SpaceX believes it can compete does it raise—for the very first time—an argument that implicates the solicitation’s terms. This tactic is explicitly barred.”
The suit has seen little progress since SpaceX filed it in late April, particularly after the court issued at the end of April—and lifted about a week later—an injunction on purchases of RD-180 engines that was tangential to the case itself. SpaceX must reply to the Air Force motion to dismiss by the end of this month.