ULA Asks Court To Dismiss SpaceX’s Block-buy Protest

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WASHINGTON — U.S. government launch services provider United Launch Alliance has joined the U.S. Air Force in asking a federal court to dismiss a lawsuit by rival Space Exploration Technologies Corp. that challenges the service’s $11 billion order of a large batch of rockets from ULA, according to a July 8 court filing.

ULA’s filing with the U.S. Court of Federal Claims follows a similar motion by the Air Force seeking to derail SpaceX’s lawsuit, which was originally filed April 28.  

In its June 30 filing, the Air Force said SpaceX lost its right to sue because it did not challenge the service’s original notice of intent to award the sole-source contract, issued in 2012, within the allotted time window.   

In its own filing, Denver-based ULA echoes many of the service’s claims, saying SpaceX should have been aware of Air Force discussions to buy as many as 40 rocket cores as far back as September 2011. ULA noted that the planned block buy was covered extensively in the media and took 18 months to negotiate.

ULA further said SpaceX decided to protest only after it “determined that the Air Force implementation of that strategy no longer suited it.” The block buy was part of a two-pronged Air Force strategy to reduce its launch costs, the other being the introduction of competition to the national security launch market.

By not responding sooner, either as an interested party or to contest the deal, “SpaceX has plainly waived any right to protest the Air Force’s acquisition strategy and terms of the sole-source requirements contract,” the motion reads.

Allowing the lawsuit to proceed would expand the court’s jurisdiction to “parties who are not capable of performing work until several years after an RFP [request for proposal] has [been] issued and contract work has long begun,” ULA said.

The Air Force’s motion focused on the part of the lawsuit challenging the Air Force’s order, made last year, of 36 rocket cores from ULA. The ULA motion asks Judge Susan Braden to dismiss the entire lawsuit, which also asks the court for assurances on how rockets are to be purchased in the future. .

Both motions argue that SpaceX cannot challenge the $11 billion deal because the Hawthorne, California-based company did not meet the legal standard as an actual prospective bidder for the work. They note that SpaceX is not yet a certified to launch national security missions.

Additionally,  on July 9, Justice Department attorneys working on behalf of the Air Force asked the judge to deny SpaceX’s motion to amend its complaint with information about the block-buy contract, saying the changes the company is seeking “would be futile.” 

In the filing, the Air Force disputed whether SpaceX would have won a competition for some of the launches. SpaceX challenged ULA’s pricing data, specifically for the Russian-made RD-180 engine that powers ULA’s Atlas 5 rocket, in the amended complaint. 

“SpaceX did not even submit a price for the agency to consider,” the Air Force document said. “Thus, SpaceX cannot show that … it would have had a ‘substantial chance’ of securing the contract.”

Meanwhile, SpaceX said July 11 the Air Force will count two launches of its Falcon 9 v1.1 rocket toward meeting the service’s requirements to bid for national security launches.

In a press release, SpaceX said the Air Force counted its Dec. 3 launch of the SES-8 telecommunications satellite into geostationary orbit and the Jan. 6 launch of the Thaicom-6 commercial telecommunications satellite. SpaceX has now completed the three successful missions necessary to be considered for Air Force certification.

SpaceX said it expects to meet the remaining certification requirements later this year.

 

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