For months, the commercial space sector has waited for a pivotal case to be resolved. This was none other than the legal action filed by Blue Origin in response to NASA selecting SpaceX to execute the Human Landing System (HLS) contract worth $2.9 billion. This system is a vital piece of the Artemis Program mission architecture, which will be used in the coming years to transport crew and cargo to the lunar surface.
In a recently-announced decision, the U.S. Court of Federal Claims officially shot Blue Origin’s protest down. This puts an end to nearly seven months of legal proceedings and gridlock following SpaceX’s selection back in April. While this means that SpaceX can get back to developing their concept – the Starship HLS – in preparation for the Artemis III missions, it is unclear if that mission will happen on schedule.
The U.S. Court of Federal Claims (as it exists today) was established in 1982 to address monetary claims against the U.S. government, mainly where federal contracts are concerned. Blue Origin filed suit with them back in August, claiming that NASA had selectively enforced safety requirements in the HLS bidding process, claiming that the Starship HLS was a risky design.
This followed an appeal made by Blue Origin and Dynetics (another finalist for the HLS contract) to the Government Accountability Office (GAO) on Apr. 26th. Here too, Blue Origin claimed that a flawed evaluation was why Blue Origin was passed over in favor of SpaceX. In addition, Blue Origin claimed that NASA had acted in bad faith, choosing to go with one design when initially, they indicated the desire to select two.
In a separate filing by Dynetics, they indicated how the selection of one company represented a failure on the part of NASA to consult all the parties involved. This was in reference to what NASA indicated in their Source Selection Statement, which accompanied the Apr. 16th announcement. In this document, the Source Selection Authority (SSA) stated that NASA was forced to go with one contractor due to budget considerations.
The GAO chose to deny these protests, which prompted Blue Origin to file suit in federal court. The order to dismiss Blue Origin’s claims did not cite the precise reason for the decision, but a redacted copy of the judge’s opinion will be released on Nov. 18th. In response to the ruling, NASA issued the following 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.
“In addition to this contract, NASA continues working with multiple American companies to bolster competition and commercial readiness for crewed transportation to the lunar surface. 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.”
“Through Artemis missions, NASA will lead the world in landing the first woman and first person of color on the lunar surface, conduct extensive operations on and around the Moon, and get ready for human missions to Mars.”
In short, NASA has indicated that it will be moving forward with SpaceX to develop the Starship HLS. At the same time, they are reminding companies like Blue Origin, Dynetics, and other commercial space entities that there will be opportunities again next year through their Lunar Exploration Transportation Services (LETS) contract. On Apr. 28th, shortly after making their HLS selection, NASA issued a Request for Information (RFI) to U.S. companies to indicate their interest in competing for this contract.
Through LETS, NASA intends to buy routine astronaut transportation services for the Artemis program through the late 2020s. This will include the Artemis IV mission, slated for March 2026, which will see a 4-person crew deliver the Gateway’s International Habitation Module (I-HAB) module to lunar orbit. Once there, it will join the core elements of the Gateway – the Power and Propulsion Element (PPE) and the Habitation and Logistics Outpost (HALO) – which will be launched atop a SpaceX Heavy Dragon in 2024.
While NASA can now proceed as planned, it is unclear if this intervening delay will affect the timetable for Artemis III. In recent years, NASA has been working towards a deadline of September 2024 for the Artemis III mission, the long-awaited “return to the Moon.” However, this is expected to be delayed due to issues with the new Exploration Extravehicular Mobility Units (xEMU) spacesuits, which the NASA’s Office of Inspector General (OIG) recently indicated will not be ready in time.
However, SpaceX CEO Elon Musk has insisted that the Starship HLS will be ready before 2024 and has even offered his assistance in developing the xEMU spacesuits. Whether that proves to be the case remains to be the same, but it is clear at this juncture that the decision to expedite the return to the Moon and the subsequent “shakeup” that followed has caused significant chaos all around. Some minor delays might be a good thing at this point, giving the agency time to get back on track.
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