No legal stones left unturned in the battle for U.S. Air Force launch contracts

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“On National Security” appears in every issue of SpaceNews magazine. This column ran in the August 19, 2019 issue.

A decision on which two launch providers the U.S. Air Force will select to split all national security missions between 2022 and 2026 is months, perhaps a year away. And already the Air Force is facing legal and political challenges that could make the Launch Service Procurement competition not simply a battle over what rockets are the most capable and cost-effective but also one to be fought by lawyers and lobbyists at every step of the way.

Four competitors submitted proposals for the National Security Space Launch Phase 2 Launch Service Procurement — United Launch Alliance, SpaceX, Northrop Grumman and Blue Origin.

SpaceX and Blue Origin both have already taken legal action against the Air Force, arguing that it has failed to create a level playing field for them and other companies to be able to challenge heavily favored ULA.

The Air Force issued a final request for proposals for the launch services contract May 3. On May 17, SpaceX filed a protest with the Court of Federal Claims over the Air Force’s Oct. 10 decision to provide funding to Blue Origin, Northrop Grumman and ULA while excluding SpaceX. The complaint criticized the Air Force’s action as “arbitrary and capricious and contrary to law” as SpaceX’s competitors received cost-sharing contracts to help them defray the expense of meeting the government’s unique launch requirements. Blue Origin got $500 million, ULA $967 million and Northrop Grumman $762 million. SpaceX insists it is at an obvious disadvantage as all four companies gear up for the Phase 2 procurement competition, and it has asked the court to reverse the Air Force’s decision.

As the SpaceX complaint moves through the legal system, the Air Force got hit again Aug. 12 when Blue Origin filed a protest with the Government Accountability Office challenging the Air Force’s plan to select two providers to share all Phase 2 missions. The “pre-award” protest claims the Air Force is pursuing an anti-competitive acquisition strategy that stacks the cards in favor of incumbent launch providers and against new entrant players. The GAO has 100 days to deliver a ruling.

Standing firmly by the Air Force is ULA, one of the front runners expected to win one of the two Phase 2 slots by virtue of being the Air Force’s most trusted launch provider, with 134 successful missions logged so far. ULA CEO Tory Bruno has called the Phase 2 strategy a “very thoughtful, well-structured acquisition.”

Separate from the legal squabbles looms a bigger question: Will the newly designed rockets that three providers are developing for the competition be ready to fly in time for Phase 2 missions?

ULA’s Vulcan, Blue Origin’s New Glenn and Northrop Grumman’s OmegA are projected to launch their first missions in 2021 and get certified by 2022, if all goes as planned. SpaceX’s Falcon 9 is the only vehicle offered for Phase 2 that is already certified and flying national security missions.

After news of the Blue Origin protest broke, the reaction on social media was a mix of surprise and cynicism. Many commenters expressed amazement that Blue Origin would mount a legal challenge long before a procurement decision is made and before it has proven its New Glenn rocket is ready to fly national security missions. It was news to many that the Air Force is comfortable with the prospect of selecting two launch providers in 2020 knowing that their vehicles won’t launch before 2021.

As one reader tweeted: “This competition is going to choose two out of four rockets, three of which will have never flown successfully before the contract is awarded. What happens if one or both rockets chosen prove to have major issues?”

Let the launch wars begin. As another launch pundit aptly put it, “I need Dramamine to keep up with the dizzying politics and litigation.”


Sandra Erwin

 

Sandra Erwin covers military space for SpaceNews. She is a veteran national security journalist and former editor of National Defense magazine.