Federal court rules against Blue Origin in HLS lawsuit

by

Updated 12:45 p.m. Eastern with NASA statement.

WASHINGTON — The Court of Federal Claims has ruled against Blue Origin in its suit about the agency’s selection of SpaceX for a single Human Landing System award.

In a one-page filing Nov. 4, Judge Richard A. Hertling granted a motion by the federal government, the defendant in the case, to dismiss the case filed by Blue Origin in August. The full opinion, like other filings in the case, remains under a protective order, although Hertling requested the parties in the case to propose redactions for a public version of the opinion by Nov. 18.

Blue Origin filed suit Aug. 16 after the Government Accountability Office rejected protests filed by both Blue Origin and Dynetics to the HLS award NASA made in April. Both the protests and the later lawsuit suspended work on the HLS program, although the parties to the suit agreed to an expedited schedule for the case that originally called for a final ruling by Nov. 1.

In its suit, Blue Origin argued that NASA ignored a requirement that bidders include a flight readiness review (FRR) before the launch of each element of the lander systems. SpaceX failed to do so for each of its Starship tanker launches, but NASA did not disqualify SpaceX’s proposal.

“We stand by our position that NASA selected a proposal that was not in compliance with the solicitation. There’s serious safety issues around that, and that waiver of material requirements prejudiced us and Dynetics,” Megan Mitchell, vice president of government relations at Blue Origin, said in an interview in September.

The GAO had rejected that argument in the bid protest, saying there was no evidence other bidders would have changed their proposals if they had known NASA would waive the FRR requirement. Blue Origin countered in its suit that it “would have engineered and proposed an entirely different architecture with corresponding differences in technical, management, and price ratings” had it known that was the case.

Blue Origin, in a statement about the court decision, reiterated its concerns. “Our lawsuit with the Court of Federal Claims highlighted the important safety issues with the Human Landing System procurement process that must still be addressed,” the company said. “Returning astronauts safely to the Moon through NASA’s public-private partnership model requires an unprejudiced procurement process alongside sound policy that incorporates redundant systems and promotes competition.”

The court decision should allow NASA to proceed with its existing HLS award to SpaceX, which the agency confirmed in a later statement. “NASA was notified Thursday that the U.S. Court of Federal Claims denied Blue Origin’s bid protest, upholding NASA’s selection of SpaceX to develop and demonstrate a modern human lunar lander. NASA will resume work with SpaceX under the Option A contract as soon as possible.”

The agency has been seeking funding for supporting additional companies for missions beyond the single demonstration landing mission in the HLS award, which would be the Artemis 3 lander mission. “There will be forthcoming opportunities for companies to partner with NASA in establishing a long-term human presence at the Moon under the agency’s Artemis program, including a call in 2022 to U.S. industry for recurring crewed lunar landing services,” NASA said in its statement.

However, NASA is under pressure by some in Congress, notably Senate appropriators, to include a second company in the HLS program, something that Blue Origin hinted at in its own statement. “We look forward to hearing from NASA on next steps in the HLS procurement process,” the company stated.