WASHINGTON – The U.S. Government Accountability Office (GAO) in December declined on jurisdictional grounds to review a protest filed by one of the losing bidders on NASA’s effort to help industry develop commercial logistics services for the international space station.

 

In its complaint, Exploration Partners LLC, a three-person outfit in
Las Cruces
,
N.M.
, said NASA unfairly passed over its proposal under the Commercial Orbital Transportation Services (COTS) program.

 

The company also claims NASA obstructed its efforts to obtain cost information on space shuttle solid rocket motors that was crucial to its proposal. As a result, the company had to change its offering at the last minute, resulting in what Exploration Partners co-owner Royce Jones called a “less than optimal proposal.”

 

The GAO declined to take the case, saying it does not have authority to rule on procurements known in government contracting parlance as “other transactions,” an official with the congressional watchdog agency said.

 

The COTS program is intended to fund demonstrations of commercially operated vehicles that could provide food, equipment and other logistical services to astronauts aboard the international space station. In August, NASA selected Space Exploration Technologies Corp. of
El Segundo
,
Calif.
, and Rocketplane Kistler of
Oklahoma City
to demonstrate such vehicles. NASA will provide up to $500 million combined to support the companies’ efforts under Space Act Agreements.

 

Space Act Agreements are used in cases where the goods or services NASA is seeking cannot be obtained using a conventional procurement instrument. Such arrangements fall into the broader category of so-called “other transactions” that are not subject to protests adjudicated by the GAO, according to the Dec. 19 decision.

 

In its decision, the GAO said it does have jurisdiction to consider protests where the plaintiff is questioning whether an agency’s use of its “other transactions” authority was appropriate. However, such appeals must be filed before the award of the contract in question, the GAO official said.

 

The official said that while Exploration Partners claimed NASA misused its “other transactions” authority, the substance of its complaint centered on the fact that it was passed over in favor of the other companies.

 

Nevertheless, Jones is crying foul over the whole affair. “What I find truly remarkable is that government agencies can conduct uncompetitive bids and as long as they use their ‘other transaction’ authority there is nothing you can do about it,” Jones said in a Dec. 26 telephone interview. “This is something Congress should really take a look at.”

 

Jones also said Exploration Partners remains miffed about what he characterized as obstructionism on NASA’s part during the competition.

 

Exploration Partners’ concept was based on the space shuttle solid rocket motors built by Alliant Techsystems Launch Systems Group of
Brigham City
,
Utah
. NASA repeatedly told bidders that it would provide fair and equal access to government equipment, including shuttle hardware, during the competition, Jones said. But just two weeks before the COTS proposals were due, Alliant said it would only be able to provide a rough cost estimate on the hardware his company was seeking, Jones contends.

 

He subsequently discovered that NASA’s space shuttle program manager, Wayne Hale, had instructed agency offices and contractors to decline all requests on behalf of the COTS program for information on shuttle-related hardware costs.

 

In a Feb. 8 e-mail, a copy of which was provided to Space News, Hale said that the space shuttle program had “no resources to devote to answering cost estimating questions from the [COTS] Program or contractors seeking work via the [COTS] program … For these reasons, I am directing all [space shuttle program] personnel at all centers NOT to honor requests for cost estimation from the [COTS] program or any of the prospective contractors that are pursuing [COTS] work until further notice.”

 

Unable to obtain the cost information, Exploration Partners switched gears at the last minute, substituting solid rocket motors left over from the U.S. Air Force’s now-retired Titan 4 heavy-lift expendable launcher program for the shuttle motors, Jones said.

 

“What we needed was for NASA not to interfere in our business,” Jones said.

 

NASA spokesman Michael Braukus declined to comment on Jones’ accusations. “We selected the companies that were determined to have the best portfolios,” he said.