NASA Presses on with COTS Despite Kistler’s Challenge

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  Space News Business

NASA Presses on with COTS Despite Kistler’s Challenge

By BRIAN BERGER
Space News Staff Writer
posted: 16 November 2007
11:14 am ET





WASHINGTON —


NASA says it is pushing ahead with the competition for $175 million in unspent Commercial Orbital Transportation Services (COTS) demonstration money despite Rocketplane Kistler’s




formal protest




of the




agency’s current bid solicitation




.



NASA’s Johnson Space Center notified prospective bidders Nov. 6 that a protest of the solicitation for space station logistics demonstrations, dubbed JSC-COTS-2, had been filed Oct. 30 with the U.S. Government Accountability Office (GAO). NASA did not identify the party behind the appeal.



“NASA will continue the evaluation process pending resolution of the protest,” NASA wrote in a COTS update posted on its procurement




Web site. “Proposal delivery date does not change. Proposals continue to be due on November 21, 2007.”

NASA expects to select a winner or winners




in early 2008.

Michael Golden, the GAO’s managing associate general counsel for procurement law, told Space News in a brief telephone interview Nov. 7 that




contract law specialists Van Scoyoc-Kelly, PLLC




filed a protest Oct. 30 on behalf of Rocketplane Kistler taking issue with NASA’s plans for putting




the remaining COTS money out for bid. Golden declined to release the protest documents or discuss the specifics of the




complaint. He said NASA would have




30 days to respond to the protest.

A copy of the 20-page protest letter obtained by Space News argues that NASA should be required to “conduct a procurement contract competition for the research and development effort it seeks” under COTS 2.



Oklahoma City-based Rocketplane Kistler was one of two companies NASA picked in mid-2006 to receive financial assistance under COTS to build and demonstrate a commercial transportation service to and from the international space station. But Rocketplane Kistler’s inability to raise the $500 million in private financing it needs to complete and demonstrate its system prompted NASA in late October to cancel the company’s COTS agreement




and announce a new




competition for the unspent funds. Rocketplane Kistler’s attorneys immediately sent a letter to NASA asking the agency to reconsider




or give the company $10 million for progress it made toward




technical milestones. A NASA spokeswoman said at the time




the agency’s decision to terminate the deal was final.





Because Rocketplane Kistler’s deal with NASA was a




Space Act Agreement instead of a traditional government contract, the company had no right to appeal its termination to the GAO, which normally referees procurement




disputes. However,




in dismissing on jurisdictional grounds a protest last year by another company




of NASA’s original COTS awards, the GAO said




it did have the authority




to review protests challenging NASA’s use of “other transactions,” a term that refers to non-traditional procurement instruments including Space Act Agreements.





Attorneys for Rocketplane Kistler did not respond to a request for comment on the protest.