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ULA joins call for dismissal of SpaceX suit

United Launch Alliance (ULA) has formally joined the Air Force’s call for the Court of Federal Claims to dismiss SpaceX’s protest of the Evolved Expendable Launch Vehicle (EELV) block buy contract. As first reported by Space News yesterday, ULA, in its role as “defendant-intervenor” in SpaceX’s suit against the Air Force, filed a motion to dismiss the suit. (The document was released on Tuesday, although it is a redacted version of the original, sealed motion filed with the court on July 2.)

ULA’s arguments for dismissal mirror those in the Air Force’s motion filed with the court early last week. SpaceX, ULA claims, lacks standing since it is not an “interested party” in the case since it is not yet certified by the Air Force to perform launches and thus isn’t an “actual or prospective bidder” for the EELV contract. ULA also argues that SpaceX was nearly two years later in filing its protest and thus “has plainly waived any right to protest the Air Force’s acquisition strategy and terms of the sole-source requirements contract.”

“To allow this untimely bid protest to continue any further would broadly and improperly expand this Court’s jurisdiction to parties who are not capable of performing the work until several years after an RFP has [been] issued and contract work long begun, and who had never even submitted a proposal or filed a formal protest prior to the proposal submission deadline,” ULA argues. “The Court should reject SpaceX’s attempt to rewrite the Court’s well-settled decisions regarding interested party status and timeliness of protests.”

36 comments to ULA joins call for dismissal of SpaceX suit

  • Michael J. Listner

    Same arguments as AF Motion to Dimiss with the difference that ULS Motion goes into greater factual detail and includes a chronology as an exhibit to its Motion. This just puts more nails in the Space X Bid Protest. ULS is flexing its legal muscle now and demonstrates to Space X that it can afford top-flight law firms too. It will be interesting to see how Space X replies and more so how Judge Brayden rules. Either way, I expect the losing party to appeal. Thanks for posting the filed Motion Jeff.

    • Dark Blue Nine

      “Same arguments as AF Motion to Dimiss with the difference that ULS Motion goes into greater factual detail and includes a chronology as an exhibit to its Motion. This just puts more nails in the Space X Bid Protest. ULS is flexing its legal muscle now and demonstrates to Space X that it can afford top-flight law firms too.”

      According to Braden (not Brayden), ULA never had standing to being with.

  • Coastal Ron

    I think SpaceX has known the odds of the legal route being successful, and that they have also been appealing to the political side of this issue – that Congress has to fund the Block Buy.

    This is only the first round…

  • ULA wants 4 years of profit guaranteed at taxpayer expense.

    Sure, the AF could shop for more cost effective options for a shorter time-frame, but who profits from that?

    • Michael J. Listner

      There’s no guarantee of profit. The contract for the block buy is fixed price.

      • Coastal Ron

        Michael J. Listner said:

        There’s no guarantee of profit. The contract for the block buy is fixed price.

        At the prices ULA charges, don’t kid yourself – they are making a profit.

        • common sense

          There is always profit. It is very naive to believe otherwise. Even on a cost plus contract the contractor takes a percentage fee (10 to 15%) of the overall contract value.

          On a fixed price there is loss if the company has to pay more for the service or product than they charged… I suppose.

      • Neil

        They wouldn’t enter into it if it didn’t result in not just a profit but a substantial one at that. The aim of the block buy is to keep out the competition, namely SpaceX, for as long as possible knowing or at leasting assuming that their potential to compete after the block buy ends, will be pretty limited.

        Given that assumption on their part, they would seek to maximise any profit potential while assuring everyone that they’re also ‘saving’ lots of money by providing a block buy in the first place.
        Simple commercial business dealing.
        Cheers

  • common sense

    Just curious. If SpaceX’s suit was baseless then why does ULA have to spend a large amount of money to somehow add to the AF call for dismissal? To me if the AF followed proper process and SpaceX is wrong then the case is closed. Period.

    Odd.

    Also. “contract work long begun” I am probably wrong here but “long begun”? For a future – like in years into the future – fielding of a number of rockets. Really? I am sure ULA can document this assertion and the loss associated with this work if asked. Right?

    • It is a lot cheaper to have the frivolous suit dismissed than it is to bring it to trial. It is ULS’s fiduciary duty to shareholders. Also, to have the suit dismissed will be a stiff rebuke to Musk and his litigious business methods.

      • Coastal Ron

        amightywind said:

        It is ULS’s [ULA] fiduciary duty to shareholders.

        ULA, which is a joint venture between two companies, doesn’t have any shareholders.

        • Michael J. Listner

          No, it doesn’t have shareholders because it’s an LLC, but it two stakeholders, Lockheed Martin and Boeing, would expect that ULA’s management wouldn’t just sit on their thumbs.

    • Michael J. Listner

      It is common practice for an intervening party to file a motion of its own so that the Court hears their side of the story. Sometimes even non-parties can file motions or briefs as “friends of the court.” It is never case closed until Space X has its say and the judge makes her decision. At that point either party can appeal the judge’s decision.

      To meet its contractual obligations ULA has to make contracts with its suppliers months and even years in advance. Building a rocket and its components takes times and unless those components are in storage they have to manufactured, which requires significant lead times.

      • common sense

        Well fine all I am saying is I suppose that ULA can document that they have done contractual work for those future launches and that the work would have been done at a loss if those future launches were to be cancelled along with the block buy. I know perfectly that there is lead work for the rockets. I don’t necessarily agree that work for launches in 2016 or after has to start in 2014, especially if there are earlier launches on schedule. But I will admit I do not know ULA’s work chain and schedule.

        • Michael Kent

          “…I suppose that ULA can document that they have done contractual work for those future launches…”

          Of course. Government cost accounting is well documented, if nothing else.

          “I know perfectly that there is lead work for the rockets. I don’t necessarily agree that work for launches in 2016 or after has to start in 2014…”

          Of course it does. The point of the block buy is so that ULA can make long-range plans internally and establish block buys from each of its suppliers. Those suppliers and ULA itself will make capital investments and hiring decisions based on the minimum requirements of the block buy. Non-recurring engineering is already underway to automate or otherwise change manufacturing processes based on the block buy. Suppliers will often turn down other work if they know their factory is going to be busy supporting one particular contract, so there are often hefty fees for breaking that contract in addition to the recuperation of the aforementioned capital investments.

          In fact, I believe ULA has stated that cancelling the block buy at this point will result in over $1 billion in termination fees. That will be on top of the $4 billion extra it will cost the USAF when they have to sign individual contracts with ULA anyway since SpaceX can’t perform the missions in the block buy.

          From the Air Force’s perspective, no good can come from the SpaceX lawsuit. SpaceX is winning no friends outside of the fanboy community for doing this.

          • Dick Eagleson

            I believe SpaceX has stated that Falcon 9v1.1 can handle 22 of the 28 missions encompassed by the block buy. SpaceX needs to provide vertical payload integration facilities, but they can likely do that faster than they can finish litigating the current lawsuit. So breaking open the block buy not only won’t involve a $4 billion loss for the Air Force, but might result in an additional savings of that much or more even after accounting for termination payments incidental to cancelling it.

            This is increasingly likely to be moot, however. ULA is going to have to cover at least some of those termination payments to suppliers if it finds that Russia indeed means what it says about cutting off the RD-180 supply they’ve been counting on. Shifting from Atlas V to Delta IV for missions where that is feasible will involve short-sheeting current Atlas V subcontracts. The Delta IV seems to be a more expensive vehicle pretty much across the board compared to the Atlas V. The block buy being a fixed-price deal, trying to re-negotiate its payment terms upward effectively breaks it open without any further action by SpaceX. Even if ULA and the Air Force win their current round of legal fisticuffs, ULA is a long way from being out of the woods.

            • Coastal Ron

              Dick Eagleson said:

              SpaceX needs to provide vertical payload integration facilities, but they can likely do that faster than they can finish litigating the current lawsuit.

              According to the Air Force some of those payloads are already certified for horizontal integration, so SpaceX would be able to handle them without any additional investment in infrastructure.

              That said, SpaceX has already said that they will provide vertical integration, and I agree they should be able to put it in place in advance of any need from the Block Buy payloads.

              • Dick Eagleson

                Didn’t know any of the payloads under the block buy were capable of accommodating horizontal integration. How many, I wonder? I always figured all the gov’t. payloads required vertical integration because they were always launched on vertically assembled launch vehicles. If you have any info on specific classes of bird that stand being laid on their sides I’d be interested in knowing what they are. Unless they’re NRO birds. After telling me about those, I assume you’d have to kill me.

            • Michael Kent

              “I believe SpaceX has stated that Falcon 9v1.1 can handle 22 of the 28 missions encompassed by the block buy.”

              And the Air Force has determined that they cannot.

              The four Heavy launches are obviously beyond the capability of the Falcon 9. So are the WGS, MUOS, and AEHF communications satellites. Since they are based on commercial satellite buses they would be the most likely candidates for SpaceX. However they are all too heavy for the Falcon 9.

              Most of the NRO recce birds, I understand, require vertical integration and on-pad access for personnel and equipment, neither of which SpaceX can provide. I believe the NRO comsats require injection directly into GEO, which SpaceX has not demonstrated. There are likely more requirements and combinations of requirements involved here.

              Regardless of whether my understanding is correct, the Air Force knows their own requirements, and they have determined that SpaceX will not have the capability to launch these payloads at the required time. They are under no obligation to wait for SpaceX to develop the capability to perform their missions.

              “So breaking open the block buy not only won’t involve a $4 billion loss for the Air Force…”

              Yes it will. Since SpaceX can’t perform the missions, so the payloads will be launched by ULA. Purchasing ULA missions piecemeal will result in an additional $4 billion cost to the USAF.

              ” Even if ULA and the Air Force win their current round of legal fisticuffs…”

              They probably will, though one is never sure in cases as political as this one.

              “ULA is a long way from being out of the woods.”

              They are in quite a bind long term.

              • Dick Eagleson

                The MUOS and AEHF birds indeed seem to be too heavy for the Falcon 9 as they are flown on Atlas V 551 and 531 configurations, respectively. The WGS looks less clear-cut to me. The Block 2 WGS’s went up on Delta IV Medium (5,4) launch vehicles which have a maximum lift capacity to GTO of either 6,500 or 7,300 kg. – both figures being given at different places in the same Wikipedia article. I believe a Falcon 9v1.1 can match the first, but not the second, of these performance numbers if it is launched as an expendable vehicle. I can’t find a mass value for the WGS Block II bird or even the Boeing 702 sub-model it’s derived from.

                As near as I can determine, there are six WGS birds, two MUOS birds and three AEHF birds on orbit now and six more WGS’s, plus three each of MUOS and AEHF to be flown over the next few years. If these missions are all part of the block buy, then that mix of 36 cores would appear to consist of at least half Delta IV cores, 12 for the four Delta IV Heavies that are acknowledged to be part of the deal and six more that are presumably for the Medium (5,4)’s needed to launch the remaining WGS birds.

                The other 18 cores had better not all be Atlas V’s because the odds look good that ULA will never be able to build that many, having a certainty of access to only 15 engines. The Falcon 9 cannot match an Atlas 531 or 551 in lift capacity to GTO even if launched expendably. So USAF would appear to have at least six birds it needs high-end Atlas V’s to launch.

                There are three Atlas V launches scheduled in the next 70 or so days, one for a GPS bird, one for a NASA science mission and one for a commercial imaging satellite. If all these launches go forward, that leaves ULA with only a dozen assured engines. If six have to be reserved for MUOS and AEHF birds, that leaves exactly six for covering the other 12 missions in the block buy, assuming the Russians send no more RD-180 engines – which is looking likelier by the day.

                Can ULA cover their bets? I don’t know. They have said they can, but I don’t know what assumptions underlie that claim. If the six missions that are looking increasingly unlikely to be able to be launched on Atlas V’s were planned for launch on single-core Delta IV’s of some kind, then ULA may, indeed, be able to meet their block buy commitments. If they come up short on Atlas V’s and can still move some birds to Delta IV’s, then they might also make their commitments, but they won’t make as much – or maybe any – money as the Delta IV is a more expensive bird than the Atlas V. I’ve been looking, but I can’t find any list of what 28 birds the 36 block buy cores are supposed to launch. If that was available, a lot of these questions could be straightforwardly answered.

                There was an AW&ST article back in May that said at least one SBIRS bird, that was within the Falcon 9′s capability envelope, had been taken out of an original list of 14 missions that were initially going to be reserved for bidding by EELV new entrants. This was later reduced to seven and now may be reduced further as more missions are shifted into the block buy to replace missions that have been delayed beyond the time span covered by the block buy and still keep the total mission count at 28.

                The delayed missions are said to include several GPS birds. But a GPS bird – a Block 2 model – is among those three missions set to be launched on Atlas V’s very soon. Perhaps the delayed GPS birds are the in-the-works Block 3 models? I don’t know because, again, there seems to be no publicly available list of block buy-related payloads.

                So SpaceX says one thing and USAF, supposedly, says another. As AW&ST reports, at least one Falcon 9-capable mission has been handed to ULA to keep the 28-mission block buy number intact. Quite possibly there have been others similarly yanked.

                Determining how many of the apparently changeable list of 28 block buy payloads the Falcon 9 could actually launch looks to be beyond my capabilities as a regular civilian to determine in an independent way with any certainty. If you have access to a list of block buy-related payloads, I am sure I am not the only one here who would be interested in seeing it.

              • Dick Eagleson

                Just a note about vertical integration and on-pad personnel access. It’s true neither of SpaceX’s current launch sites are so equipped. But SpaceX has a 20-year lease on LC-39A at KSC and expects to finish refurbishing it around the middle of next year. That pad already has such facilities. So if SpaceX adapts them to the needs of Falcon 9 and Falcon Heavy, that would take care of another of their current deficits vis-a-vis EELV payload launches. I don’t think any of the ULA block buy missions are scheduled for launch before mid-2015 anyway, though again, that is something I’m having trouble nailing down from publicly available sources. Any definite knowledge you have about this matter would, again, be appreciated by me and, I’m sure, many others here.

              • Michael Kent

                ” I can’t find a mass value for the WGS Block II bird or even the Boeing 702 sub-model it’s derived from.”

                Spaceflight Now lists the WGS weight as 13,200 lb (6,000 kg).

                “I believe a Falcon 9v1.1 can match the first [6,500 kg], but not the second [7,300 kg], of these performance numbers if it is launched as an expendable vehicle.”

                The SpaceX website lists the Falcon 9 payload mass as 4,850 kg to GTO. I believe that is in reusable mode and that the payload mass in expendable mode is 5,300 kg. SES has ordered a Falcon 9 launch for more than that, but that launch is going to a sub-synchronous orbit in which the payload itself makes up the difference.

                Note that SpaceX quotes capability to a GTO with a 1,800 m/s deficit from GEO. Most others quote a capability to a 1,500 m/s deficit from GEO. Just be aware of that when comparing payload capabilities.

                “…then that mix of 36 cores would appear to consist of at least half Delta IV cores…”

                The mix is 4 Delta IV Heavies, 4 Delta IV Mediums, and 20 Atlas Vs.

                “assuming the Russians send no more RD-180 engines – which is looking likelier by the day.”

                Maybe. First, the engine embargo only applies to military missions, not civilian and commercial misisons. Second, there is some dispute as to the definition of “military mission.” Air Force missions like those in the block buy would seem to apply, but Russia has in the past deemed “military mission” to mean only actual weapons. The Air Force doesn’t launch those on Atlas rockets. Finally, ULA has said it had a day-long meeting on 30 May with RD Amross and NPO Energomash without any word of a delivery disruption.

                “The delayed missions are said to include several GPS birds…Perhaps the delayed GPS birds are the in-the-works Block 3 models?”

                Five of the delayed missions are indeed GPS III missions. Another is a satellite that grew too heavy for a Falcon 9. I don’t know what the last one is.

              • Dick Eagleson

                Appreciate the info.

                There was a story in Space News yesterday about USAF possibly deferring launch of two WGS birds because of budget cuts. Looks like USAF needs affordable launch soonest.

                If the block buy assumed 20 Atlas V’s, then the whole deal depends, existentially, on additional RD-180 shipments arriving this year and perhaps even next. ULA certainly doesn’t have enough engines on-hand now to fulfill the block buy should future expected shipments indeed be embargoed by Russia. This also makes it seem downright crazy to me that three Atlas V’s are currently scheduled to launch one GPS block 2 and two civilian payloads in the next 70 or so days. Assuming the future good faith of hostile Russians is a mug’s game IMNSHO.

                As to the meeting with Amross and Energomash, I’m not surprised. Russians will always repeat whatever the last authorized line was – right up until they do a Lucy-with-the-football number on you. I’m guessing that, for maximum impact, a formal announcement of no more RD-180′s coming will probably be delayed until the last possible instant. It’s the way these people roll.

                If I was USAF and NRO I’d be hoping SpaceX gets both 1st-stage reusability and Falcon Heavy sorted out ASAP; they’re going to need both quite soon.

    • Fred Willett

      From Jeff’s description of the filing it sounds as if ULA (and the airforce before them) are just saying “Here’s our interpretation of the law and on that basis you should dismiss.” They don’t address the issue SpaceX raises.
      SpaceX is essentially saying the AF was directed to get competition ASAP in an effort to control prices. A block buy goes against that direction. It gives ULA a monopoly for 5-6 years
      The point the judge has to decide is should the block buy stand because it is legal, or should it be set aside because it going against the expressed intent of those further up the chain of command.

      • Michael Kent

        “It gives ULA a monopoly for 5-6 years.”
        It does no such thing. First of all, SpaceX has already been awarded two missions from the Air Force. Second, 14 of the 42 missions during the block buy period were pulled out of the block buy to be competed between ULA and SpaceX.
        That’s nowhere close to a monopoly.

        • Coastal Ron

          Michael Kent said:

          Second, 14 of the 42 missions during the block buy period were pulled out of the block buy to be competed between ULA and SpaceX.

          Those were mainly GPS replenishment satellites, but since the current fleet is exceeding their design life those 14 missions have been reduced to about 7. That was announced shortly after the Block Buy was announced – what timing…

          • Michael Kent

            They have not been reduced. Each of those launches will still happen, just at a date later than originally thought. Much like the rest of SpaceX’s manifest.

            • Coastal Ron

              Michael Kent said:

              They have not been reduced.

              Of course they have.

              The Air Force was talking about a number of potential payloads WITHIN A SPECIFIED PERIOD OF TIME, and within that window of time the number went from 14 to 7.

              Are you not up to date on this issue??

              • Michael Kent

                They have not gone away. The missions are still there, and SpaceX will still be able to compete for them. The delay changes not one bit the amount of business SpaceX will be able to compete for.

                Considering how unlikely it is SpaceX will be able to launch them in the originally specified timeframe, the delay will probably actually help SpaceX.

              • Dick Eagleson

                I’ll repeat the requests I made in other comments above. Do you know the beginning and ending dates of the interval within which all the block buy-related missions are supposed to fly? Do you have a list of the block buy-related payloads? I realize this last requested item seems to be a fairly rapidly moving target. Still, any info would be appreciated. Without knowing these things it’s essentially impossible to judge who can physically do what in order to evaluate the truth of the various diametrically opposed claims floating around about the issue of how many block buy missions SpaceX could, in theory, accommodate.

      • Michael J. Listner

        They don’t have to raise the issues Space X raises because like USAF and ULA assert in their motions Space X doesn’t have legal standing to raise the issues.

  • Neil

    Not thinking this through Michael, they’ve gone away since they are now outside the block buy period and therefore no longer part of the block buy.
    Cheers.

  • Jim Nobles

    Interesting article on the Block Buy Suit on Defense Industry Daily. It goes into a little detail.

    http://www.defenseindustrydaily.com/sued-from-orbit-spacex-and-the-eelv-contract-025519/

  • Coastal Ron

    Well one more roadblock has gone away – the Air Force has certified the SpaceX Falcon 9.

    http://www.latimes.com/business/aerospace/la-fi-spacex-air-force-launch-contracts-20140711-story.html

    There are a few more requirements that must be met before they can actually launch payloads for the Air Force, but SpaceX says they will have those satisfied this year.

    To show how important this is from a taxpayer standpoint, the article says:

    The Government Accountability Office said the Evolved Expendable Launch Vehicle program had increased by $28.1 billion to $64 billion over the last fiscal year.

    Hard to see how ULA can claim to be “saving” the taxpayer money when they’ve been raking in the cash for low these many years. That’s like saying “Yes I extorted $100 from you, but here’s a $5 Starbucks gift card to make you not feel so bad”…

    • Michael Kent

      That sounds like a life-cycle cost estimate.

      Note that when GAO does these estimates, they don’t distinguish between “costs more because the price went up while the scope of the contract stayed the same” and “costs more because the scope of the contract increased.”

    • Dick Eagleson

      Thanks for the link to the L.A. Times story C.R. I read another story about this somewhere else that was hopelessly vague about just what had been certified and what was left. So the three required flights have now completed review and had USAF holy water sprinkled on them. Good. What’s left, I’m supposing, is satisfying USAF as to how SpaceX proposes to do any needed vertical payload integrations and when they expect to be ready to do so. I’m unaware of any other major to-do item that hasn’t yet been covered.

      In the meantime, that’s one more supposed SpaceX shortcoming the Elon-haters out there are going to have to scratch off their lists. I’d recommend they take a little time out to resharpen their pencils. Their list-scratching chores are likely to take a major jump upward over the coming year or so.

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