In the first order, Judge Susan Braden directed the Air Force and SpaceX to take the first steps towards [...]]]> In a pair of orders issued Thursday, a federal court judge pushed SpaceX and the US Air Force to resolve the ongoing lawsuit over the EELV block buy contract through mediation rather than in the courtroom.

In the first order, Judge Susan Braden directed the Air Force and SpaceX to take the first steps towards mediation. By August 8, The Air Force must provide to SpaceX a list of missions it plans to perform using the vehicles acquired in the block buy contract “together with sufficient technical information to allow Plaintiff to determine whether and when it can perform those missions.”

SpaceX, by September 10, will submit a list of issues that it will seek to resolve through mediation as well as other issues involved with mediation, including a proposed mediator and schedule for the mediation process. The Air Force must respond by October 14. “To facilitate the good faith efforts of the Government and Plaintiff to undertake these initial steps in a mediation process, all parties are ordered to decline to comment in the press about the substance or assignments set forth herein,” the order states.

In a second order, largely dealing with the “administrative record” of the case, Judge Braden threw out a motion by United Launch Alliance (ULA), the “defendent-intervenor” in the case, to dismiss the SpaceX suit. That decision, though, was not based on the merits of ULA’s arguments in its motion, but because the court concluded ULA had no standing to request a dismissal. “The Defendant-Intervenor has no basis to challenge Plaintiff’s standing in this case, as all relevant evidence is within the custody and control of the Plaintiff and/or Government.”

The decision was considered a victory for SpaceX in many media reports, although it may be more accurate to consider it not a defeat. The court has not thrown out the SpaceX suit, although it hasn’t ruled on the Air Force’s motion to dismiss. (The fact that Judge Braden is setting up a mediation process suggests she will not rule on that motion while mediation is ongoing.) SpaceX has hinted in the past that it would be open to some kind of settlement in its suit, but has been vague on what it would accept.

Rep. Steven Palazzo (R-MS), chairman of the [...]]]> On Thursday, the Future Space Leaders Foundation held Future Space 2014, a conference oriented primarily to students and young professionals to discuss “cross-cutting issues” in space. The event included talks by four members of House, who discussed a range of issues about civil, commercial, and military space policy.

Rep. Steven Palazzo (R-MS), chairman of the space subcommittee of the House Science Committee, said he still expected Congress to pass an update to the Commercial Space Launch Act (CSLA) this year, even though such legislation has yet to be introduced. “It is my hope, before this Congress is finished, that we will be able to get some updates to the CSLA passed,” he said, without discussing what those changes would be.

Palazzo added that he also expected the Senate to pass a version of the NASA authorization bill that the House approved on a 401-2 vote on June 9. The Senate has yet to take up that bill, or introduce its own, but Palazzo said Rep. Donna Edwards (D-MD), ranking member of the space subcommittee, has been talking to members of the Senate about their plans. He was more doubtful, though, about the ASTEROIDS Act introduced by Reps. Bill Posey (R-FL) and Derek Kilmer (D-WA) last week. “We have a limited amount of legislative days this year,” he said. “Our committee is reviewing it as we speak.”

In a separate speech later in the morning, Rep. Jim Langevin (D-RI), a member of the House Armed Services Committee, expressed support for funding a domestic replacement for the Russian-built RD-180 engine used on the first stage of the Atlas V. “There’s a strong possibility that the Congress will finalize support for a domestically-built alternative later this year,” he said. “I hope it happens sooner, rather than later.”

Rep. Jim Bridenstine (R-OK), who followed Langevin, discussed the need for limiting the liability that private space ventures face. He cited his own experience with the Rocket Racing League, which flew rocket-powered aircraft several years ago but lost funding when a rocket “completely unaffiliated with us blew up.”

“If we truly want to this industry to advance into the future, we’ve got to make sure we’re doing the right things to limit liability so those of us who are willing to take risks have the opportunity to that,” he said. Asked after his speech what specific measure he had in mind, he said that Rep. Kevin McCarthy (R-CA), the incoming House Majority Leader, was making “great strides” on this topic. “As it relates to this issue, since it’s his district and he’s got the lead on this, I’m going to to turn to him for his guidance and his leadership,” Bridenstine said. (McCarthy’s district includes the Mojave Air and Space Port, home to a number of commercial space companies, including Virgin Galactic and XCOR Aerospace.)

Closing out the event was Sen. Martin Heinrich (D-NM), who touched on commercial and military space activities, particularly those in his state. Like Rep. Langevin, Heinrich appeared to endorse development of an RD-180 engine. “It’s clear that over-reliance on assets like the RD-180 for national security launches is something that we need to look at very seriously,” he said in a luncheon speech. “Some argue that it would take years to build a comparable engine here in the United States, and they talk about the cost of building those assets. But I think these arguments only prolong inaction and, frankly, delay a course of action” towards self-reliance.

Heinrich also mentioned a topic he’s championed in military space, Operationally Responsive Space (ORS), which seeks to develop capabilities to rapidly build and launch satellites to support military forces in times of crisis. He has successfully fought efforts by the Air Force to close the ORS Office, based in New Mexico. “I’m very pleased that the Air Force has now agreed in recent years that this program is going to move forward,” he said. “I like to say that ORS is disruptive, and disruptive in the best sense of the word… It creates new possibilities for us.”

“Recent news reports have shown that an epidemic of anomalies have occurred during SpaceX launches or launch attempts,” write Reps. Mo Brooks (R-AL), Mike Coffman (R-CO), [...]]]> Three members of Congress from Alabama and Colorado have asked NASA to provide information on what they receive to be an “epidemic of anomalies” on missions performed by SpaceX.

“Recent news reports have shown that an epidemic of anomalies have occurred during SpaceX launches or launch attempts,” write Reps. Mo Brooks (R-AL), Mike Coffman (R-CO), and Cory Gardner (R-CO) in a July 15 letter to NASA administrator Charles Bolden. Those anomalies cited in the letter include issues with both SpaceX’s Falcon 9 rocket and Dragon spacecraft, ranging from “multiple” helium leaks to seawater intrusions into the Dragon spacecraft after splashdown.

The congressmen are seeking information from NASA about those incidents because of the role the agency has played in support the development of Falcon 9 and Dragon, and as a customer of the cargo transportation services they provide. “In the interest of full disclosure and accountability to the American taxpayer, we request that NASA publicly release all anomalies and mishap information, un-redacted, so that Congress can gain a better understanding of what has occurred and ensure full transparency,” they write. They also ask for information “on the various aspects of risk and reliability with these programs” and the agency’s “understanding of the specific technical issues, failures and resulting consequences for ISS.”

The members’ argument for providing this information is NASA’s support for the development of Falcon 9 and Dragon. “Again, because the vehicles in question were funded by American taxpayer dollars, there should be no issue in making this report publicly available,” they write. However, development of Falcon 9 and Dragon was supported, but not exclusively funded, by NASA through the Commercial Orbital Transportation Services (COTS) program, using Space Act Agreements versus conventional contracts. SpaceX supplemented the NASA funding with its own; SpaceX CEO Elon Musk has said on a number of occasions that the company used no NASA funding for development of the Falcon 9.

SpaceX does have a contract with NASA for ISS resupply, but that contract is for cargo services: that is, NASA is buying transport of cargo to and from the station, and not the launch vehicle and spacecraft itself, and thus the agency may not have the technical insight that the congressmen expect. In addition, providing “un-redacted” technical information publicly, even if it is available to NASA, could run afoul of export control restrictions.

The timing of the letter coincides with a hearing this morning by subcommittees of the Senate Commerce Committee and Senate Armed Services Committee on space access. The Armed Services’ strategic forces subcommittee is chaired by Sen. Mark Udall (D-CO), who is running for reelection this fall; Rep. Gardner is the Republican challenger to Udall.

In their letter, the congressmen say they support competition for EELV launches, but worry that “the process may be weakened due to recent attacks on the Air Force regarding oversight and the need to certify providers launching national security payloads. We strongly support the Air Force certification process and object to any effort to bypass it or loosen its standards.”

The congressmen issued their letter the same day as the Air Force confirmed that it had certified as successful the second and third Falcon 9 v1.1 launches, a major milestone towards the overall certification of the launch vehicle for EELV payloads. “I applaud SpaceX on achieving the three flights,” said Lt. Gen. Sam Greaves, commander of the Air Force Space and Missile Systems Center, in the statement. “With this significant part of the agreed-to path in certifying the Falcon 9 v1.1 launch system complete, we look forward to working with SpaceX to complete the remaining certification activities and providing SpaceX with the opportunity to compete for EELV missions.”

“We don’t seem to be as encouraging of [...]]]> While the Senate gears up for a joint hearing Wednesday on space access, some members of the House Armed Services Committee used a July 10 hearing on Defense Department acquisitions issues to grill a top Pentagon official on the topic of the Evolved Expendable Launch Vehicle (EELV)

“We don’t seem to be as encouraging of competition in this area as I would think we should be,” said Rep. Adam Smith (D-WA), ranking member of the full committee, referring to the EELV program and the “block buy” contract the Air Force awarded United Launch Alliance (ULA). “It seems to be an incumbent bias there that is robbing us, in some instances, of innovation from new companies and new technologies.”

Frank Kendall, Under Secretary of Defense for Acquisition, told Smith that he supported competition, and arranged the block buy to set aside a number of launches, originally 14, that would be competed. “Since then, because of a combination of budget changes, and increased lifetime of some of our satellites, some of those launches have slipped,” he acknowledged. “We still plan to compete them, we’re just going to compete them later than we originally intended.” He also noted that one of those 14 did move into the ULA block buy “to fulfill our side of the contract.”

Kendall also said that the Defense Department has been “aggressive” into bringing SpaceX into the EELV program through the ongoing certification process. (A day after the hearing, SpaceX announced that its first three Falcon 9 v1.1 launches had been certified as successful by the Air Force, although the service is not expected to complete the overall certification process until late this year or early next year.) He also reiterated previous guidance that would allow companies like SpaceX to compete “if they’re on the path to certification.”

Smith suggested, though, that the block buy contract locked out SpaceX from competing for Air Force launch contracts. “‘Locked them out’ is not really the intent,” Kendall responded. “The intent is to do launches with ULA than only ULA can do.”

Later in the hearing, Rep. Hank Johnson (D-GA) asked Kendall about competition, focusing on why the Air Force could not use launch providers other than “UAL” (as Johnson frequently called United Launch Alliance) when NASA and commercial companies can. Kendall reiterated his support for competition. Kendall noted that security and reliability were the key reasons that the DOD, for now, used only ULA for its launches.

Kendall also emphasized again his support for competition in launch services. “We are going to be, very soon, releasing an RFP for our first competitive bids for launch,” he said. “That’s an FY15 acquisition.”

“SpaceX’s complaint [...]]]> 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.