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.”

Independent qualifies for ballot against Mo Brooks

An engineer working on NASA’s Space Launch System program will appear on the ballot as an independent in November’s general election against Rep. Mo Brooks (R-AL). In a Facebook post yesterday, Mark Bray said the Alabama secretary of state certified the petitions his campaign submitted to appear on the ballot in the November general election for the state’s 5th Congressional district, which includes the city of Huntsville and NASA’s Marshall Space Flight Center.

Bray, who works for Jacobs Engineering on the SLS program, announced his plans to run for the seat in February as an independent. Brooks easily won the Republican primary for the district last month and faces no Democratic opposition. While the seat remains “Solid Republican” in the latest Cook Political Report, Bray tells the Huntsville Times he is buoyed by Rep. Eric Cantor’s upset loss in the Republican primary in Virginia last month. “The message was clearly sent that if you are an incumbent with a large pot of money, you shouldn’t discount contenders,” Bray told the newspaper.

No action, but more commentary, on Shelby’s commercial crew cost language

The Commerce, Justice, and Science (CJS) appropriations bill remains in the Senate, after action on the bill stalled out on the Senate floor two weeks ago due to matters unrelated to NASA. The earliest debate on the bill could resume is early next week, although it’s unclear exactly when they’ll take up the bill again.

The absence of action, though, has not meant an absence of commentary about the bill, in particular a provision in report language accompanying the bill requiring “certified cost and pricing data” from companies receiving commercial crew and cargo contracts from NASA. As floor debate on the bill began two weeks ago, Sen. Richard Shelby (R-AL), who requested that provision, defended it by arguing that it ensures “the price NASA has agreed to pay for vehicle development matches actual development expenditures.” Many in the commercial spaceflight industry, and advocates of that industry, opposed the language, arguing it would drive up costs.

In an op-ed in Space News this week, Eric Sterner of the Marshall Institute argues that, at first look, it makes sense to apply those cost requirements to the commercial crew program, since it is primarily funded by the government, which will also be the primary customer of those services. “Despite constant rhetoric to the contrary, there is nothing ‘commercial’ about the commercial crew program,” he writes.

Yet, he notes that such pricing data is not required for NASA’s existing contracts for crew transportation services from Russia, which “means is that the need for FAR-compliant cost and pricing data is not absolute, required above all other things.” The need to expedite development of commercial crew systems to end reliance on Russia and maximize their use over the remainder of the International Space Station’s lifetime calls for approaches that minimize the bureaucratic red tape associated with conventional contracting approaches, he argues, among other reasons. “When it comes to human spaceflight in the United States, NASA cannot pursue ‘business as usual’ approaches. It lacks funding and time for a traditional procurement or development program.”

Meanwhile, the Houston Chronicle takes a different, and more Texas-centric, approach to its criticism of Shelby’s report language in an editorial Tuesday. Shelby, the paper argues, “wants to drag companies like SpaceX back to Earth and force them to comply with NASA’s usual regulatory paperwork. This idea threatens to kill the goose that could lay the golden egg,” adding that Shelby is perhaps motivated to protect the Marshall Space Flight Center in his state.

“As fans of the Johnson Space Center, we can sympathize with Shelby’s desire to protect his constituents’ jobs against a perceived competitor. But Shelby’s policy is misguided,” the editorial continues. The editorial concludes by asking Texas’s two senators to fight back: “Texas’ own senators should go to bat for SpaceX and ensure that its multimillion dollar investment outside Brownsville doesn’t get tied up in Shelby’s red tape. Shelby is fighting for his state. Where are the Texans fighting for Texas?” The Brownsville reference is to the likely site of a future SpaceX commercial launch site, although it’s unlikely that facility will be used for commercial crew or cargo missions to the ISS.

Air Force seeks to dismiss SpaceX EELV suit

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.

CSF continues to press for human spaceflight export rule changes

The mid-May publication of the “draft final” export control rule for satellites and related components largely brought the saga of export control reform to an end, with the exception of a few loose ends, such as aperture limits for remote sensing systems. The administration’s decision was a major, but not complete, victory for the space industry. One area where they sought but did not win change was in human spaceflight: crewed vehicles, both suborbital and orbital, will remain on the US Munitions List (USML) and thus under the jurisdiction of the International Traffic in Arms Regulations (ITAR).

“Spacecraft specially designed for human space flight that have integrated propulsion present another security concern, for such capabilities may be used for the purposes of weapons targeting from space,” the State Department noted in its final ruling. “So, although these technologies and capabilities are used in commercial endeavors, they continue to merit control on the USML.”

While the State Department appears to have no immediate plans to revisit this decision, the organization representing many developers of such spacecraft is keeping the agency aware of the issue. “As commercial space companies continue to test and develop their vehicles, it is vital to have an export control regime that will not illegitimately inhibit the potential of this growing industry,” wrote the Commercial Spaceflight Federation (CSF) in a June 27 letter, signed by CSF president Michael Lopez-Alegria, to the Directorate of Defense Trade Controls in the State Department. “Steps should be taken to further investigate how to modernize the USML to appropriately move these vehicles to the Commerce Control List (CCL).”

The CSF notes in the letter that the State Department had not formally requested comment on its decision to retain human spaceflight vehicles on the USML, it says it plans to “submit further detailed comments to the State Department along with our submission to the Department of Commerce in response to their request for comments on the continued application of USML controls to commercial space launch vehicles and human spaceflight.”

The letter comes during a time of transition for the CSF. As Space News reported last week, executive director Alex Saltman stepped down last week, a move planned long ago as he is heading to California with his family; he will stay on with the CSF in the role of senior advisor. Lopez-Alegria is also planning to leave the CSF by the end of the year.

ULA and SpaceX trade jabs

While there have been no major developments in the legal, political, and public relations battles among SpaceX, United Launch Alliance (ULA), and the Air Force regarding competition for Evolved Expendable Launch Vehicle (EELV) class launches, the two companies traded jabs on Thursday in the form of court filings and advertisements.

A spokesperson for SpaceX said Thursday that the company filed a motion with the Court of Federal Claims on Wednesday regarding its suit against the Air Force, seeking to amend their original complaint. The amendment deals with allegations of inflated prices for RD-180 engines raised by Sen. John McCain (R-AZ) in a statement last Friday.

SpaceX argues, in its motion, that McCain’s statement shows that ULA and the Air Force failed to provide and certify EELV costs before the Air Force awarded a “block buy” EELV contract to the company in late 2013. “Had ULA complied with its legal obligation to provide certified cost and pricing data for the RD-180 engines and other rocket component parts, it would have been forced to confront the fact that at least one of its suppliers is fleecing the United States taxpayer,” SpaceX states in its motion. “The Air Force would not have been able to determine that ULA’s prices were fair and reasonable, and the Air Force would have rejected ULA’s proposal and not entered into the December 2013 sole source contract.”

ULA, meanwhile, is responding in the court of public opinion, so to speak, with a series of advertisements emphasizing the company’s track record in launching critical government satellites. The company released the second in that series, which it calls “Reliability over Recognition.” (The first, released last week, was dubbed “Results over Rhetoric.”)

“As ULA CEO Mr. [Michael] Gass has publicly stated,” ULA spokesperson Jessica Rye wrote in an email accompanying the ad, “there has been misinformation and we want to make clear that there is a lot at stake when launch services provide critical national security support to our military and first responders and help predict dangerous weather events.”

NRC co-chairs reiterate call for national commitment and sustained funding for human space exploration

Tuesday’s 90-minute hearing by the House Science Committee on the final report National Research Council’s Committee on Human Spaceflight broke little new ground about the report or its conclusions about where, why, and how humans should explore space beyond Earth orbit. The committee’s two co-chairs, Mitch Daniels and Jonathan Lunine, discussed the report’s conclusions as some members used the report to back up their own—and often negative—opinions of NASA’s current space exploration plans.

“The administration’s continued focus on costly distractions is harmful to our space program and does not inspire future generations to go into innovative fields in science and math,” said Rep. Lamar Smith (R-TX), chairman of the committee, in his opening statement, referring to NASA’s Asteroid Redirect Mission (ARM) plans. ARM, he said, “is a mission without a realistic budget, without a destination, and without a certain launch date.” That is similar to past criticism he has levied against ARM.

The NRC report did not reflect favorably on an exploration “pathway” that included ARM, indicating that it contained a large number of technological leaps and dead-ends. However, the committee co-chairs were not, despite some questioning along those lines from members, critical of ARM itself, saying they did not closely study it while working on the report. “The task statement that we responded to in our report did not include a detailed assessment of the ARM,” Lunine said in response to a question on it from Rep. Mo Brooks (R-AL). “We did not conduct a scientific or technical assessment of the ARM, specifically.”

While some Science Committee members, like Smith, seemed willing to lay the blame for the current state of NASA human spaceflight efforts at the feet of the Obama Administration, the witnesses stayed above any partisan fray, arguing that any lack of direction in human space exploration has roots that go back far deeper. Language in the report, Daniels said, was “meant to refer not to any one administration, but really to a persistent pattern now, and I think we speak in terms of decades.”

Members also pressed Daniels and Lunine on the costs of the proposed pathways that would get humans to Mars. The report was deliberately vague about it, other than stating the need for spending increases above the rate of inflation, as well as a greater use of international partnerships, points the co-chairs emphasized in their testimony. “I think that, quite properly, the committee didn’t want to go beyond expressing bands and ranges” for the costs of mission architectures, Daniels said when asked by Rep. Donna Edwards (D-MD) for a “ballpark” budget estimate. “The ultimate budget would be driven by the pathway chosen” and that the committee “didn’t want to commit the sin of false precision.”

Edwards sounded a little frustrated by that response. “I don’t think we want NASA committing to those sins, either, but we do have to have a budget from the Congress,” she responded. As they stated at the rollout of the report earlier in the month, Daniels and Lunine said during the hearing that the total costs of achieving the “horizon goal” of landing humans on Mars would run into the hundreds of billions of dollars over several decades.

One issue the witnesses emphasized throughout the hearing was the importance of a long-term commitment from government and the American public for an exploration pathway, including the budget increases the committee concluded were needed to carry out the missions in that path in a “reasonable” period. (Daniels and Lunine didn’t define “reasonable,” but the example pathways included in the report have people landing on Mars some time between the late 2030s and mid 2050s.) “If there is not that strong national commitment, then it’s going to be difficult to pull off human exploration missions into deep space at all,” Lunine said.

The report, though, doesn’t discuss how to develop and sustain such a long-term commitment, only that one is necessary. “We recognize that calling for an approach like this flies in the face of everything back to the ’70s,” Daniels said. “But we also say that if it seems unrealistic to believe that sort unity and that sort of continuity could be brought off in our system, then we might as well face up that Mars itself is unrealistic.” He added in what he acknowledged was “wild, wishful thinking” that such sustained support for space exploration could be an area of cooperation for people who “disagree strongly and sincerely” about other issues.

Some members mentioned one of the more controversial aspects of the report that did not deal with exploration destinations and pathways: its finding that greater international cooperation should also include China. Rep. Frederica Wilson (D-FL) expressed concerns about intellectual property theft should China be involved in future space exploration efforts. Rep. Dana Rohrabacher (R-CA) drew an historical analogy. “What if someone said in 1937, ‘We really want to develop this rocket to go to the Moon and this guy over there in Germany really has got a good rocket program. Maybe we should cooperate with him.'”

“The committee recognized how difficult and complex this subject is,” Daniels responded. “Remember the incredible timeframes over which we’re talking. Countries that are friends today with might not be friends in 2040 or 2050, which might be as soon as we can get there in the best of circumstances. And vice versa.”

Gerstenmaier: a “lot of good things” in NRC human space exploration report

Later this morning, the full House Science Committee will hold a hearing on the “Pathways to Exploration” report by the National Research Council’s Committee on Human Spaceflight. The hearing’s charter, posted to the committee’s website yesterday evening, doesn’t offer many hints about committee members’ thoughts or lines of questioning about the report: the charter runs only one page.

At a meeting of the Human Exploration and Operations Committee of the NASA Advisory Council (NAC) on Monday, Bill Gerstenmaier, NASA associate administrator for human exploration and operations, briefly touched upon the NRC’s report. “I think it’s worthwhile to read the report,” he told the committee. “It’s kind of long, but I think there’s a lot of good things in the report that are noteworthy that you should read from the committee’s standpoint.” He added there may be “some actionable items” in the report that may be of interest to the full NAC.

“I think it’ll also be interesting to see how it will be perceived in the hearing this week,” Gerstenmaier added, referring to today’s Science Committee hearing. “You’ve had a chance of seeing us describe the strategy and how we’re actually implementing it, then you’ll get a chance to see how another committee sees that, and responding back could be helpful for us.”

New House majority leader, a commercial space supporter, opposes a tool that supports commercial space

Last week House Republicans elected Rep. Kevin McCarthy (R-CA) as their new majority leader, replacing Rep. Eric Cantor (R-VA), who was upset in a primary election earlier this month. This should be welcome news for the commercial space industry, as McCarthy has expressed support for the industry in recent years, including sponsoring legislation to “streamline” commercial spaceflight regulations.

That interest is, at least in part, because his district includes the Mojave Air and Space Port, a nexus of commercial spaceflight activity. On Saturday, his Twitter account noted the tenth anniversary of SpaceShipOne’s history making flight from Mojave. (And, in the interests of full disclosure, his account retweeted several of my tweets of images from that event.)

One day later, though, McCarthy expressed his opposition to a financial institution that has supported some commercial space companies in the US in recent years. In an interview on Fox News Sunday, McCarthy said he would vote against reauthorization of Export-Import (Ex-Im) Bank of the United States, which supports financing of exports of products and services created by US companies.

“One of the problems with government is it’s going to take hard earned money so others do things that the private sector can do. That’s what Ex-Im Bank does,” McCarthy said when host Chris Wallace asked him about the upcoming reauthorization of the bank. “I think Ex-Im Bank is one that government does not have to be involved in. The private sector can do it.” Asked directly by Wallace if he would vote against its reauthorization, McCarthy said, “Yes.”

The Ex-Im Bank has been increasingly used by domestic satellite manufacturers and launch services providers in recent years to provide favorable financing terms for the sale of commercial satellites and launches. For example, in 2012 it backed financing of satellites built by Boeing, Lockheed Martin, and Orbital Sciences to customers in Australia and Mexico. Later that year, it financed the sale of satellites built by Boeing and Space Systems/Loral to a Hong Kong-based company; the deal also covered the launch of two of those satellites on a SpaceX Falcon 9.

Like many other business organizations, the Aerospace Industries Association (AIA) has warned about the potential effects on industry should Congress not reauthorize the bank. “Ex-Im Bank export credit support has helped U.S. companies compete successfully for major foreign sales of U.S. civilian aircraft, launch services and commercial satellites in recent years,” the AIA states in its position paper about the bank on its website. “[T]he Bank helps level the playing field for America’s aerospace manufacturers, who are competing with foreign companies backed by the low interest rates and deep coffers of other nations.”

The head of the AIA, Marion Blakey, appealed to conservatives who oppose reauthorization of Ex-Im by invoking the name of a particular historic figure. “During his presidency, Reagan strongly backed Ex-Im, albeit with necessary reforms,” she wrote in an op-ed published in Aviation Week earlier this month. She warned that a failure to reauthorize Ex-Im would “amount to economic unilateral disarmament against 60 other nations whose export credit agencies aggressively support their businesses.” In the space industry, that would primarily be the French agency Coface, which has supported a number of space-related deals in the last several years.

That view is echoed by those companies trying to sell spacecraft and launches. “We believe that [Ex-Im Bank reauthorization] is a very important element in making US industry competitive,” said Mike Hamel, president of the Commercial Ventures division within Lockheed Martin Space Systems Company, in a June 9 interview during Lockheed Martin’s media day in Arlington, Virginia. “In many cases, we find that we have to compete not just with foreign companies but also with foreign governments that are very active in supporting their respective industries.”

The House Financial Services Committee plans to hold a hearing Wednesday on reauthorization of the Ex-Im Bank; the hearing is titled: “Examining Reauthorization of the Export-Import Bank: Corporate Necessity or Corporate Welfare?” The committee’s membership includes Kevin McCarthy.

(Disclosure: my employer has done occasional engineering and related studies for the Ex-Im Bank.)

Human spaceflight study co-chairs to appear before House Science Committee

Three weeks after releasing their final report on the future of human space exploration, the co-chairs of the National Research Council’s Committee on Human Spaceflight will speak at a hearing of the House Science Committee this week. Purdue University president and former Indiana governor Mitch Daniels, and Jonathan Lunine from Cornell University, will testify before the full House Science Committee on Wednesday morning to discuss their report. The two are the only witnesses scheduled to testify.

The committee’s report, originally requested in the 2010 NASA Authorization Act, proposed a “pathways” approach to human space exploration, in contrast to the “flexible path” model conceived by the Augustine Committee in 2009 and adopted in large part by NASA. However, the committee also noted that carrying out any of their proposed pathways (which, in some cases, would mean not landing humans on Mars until 2050 or later) will require increases in NASA’s budget at up to twice the rate of inflation for an extended period.