Air Force: Federal Claims Court does not have jurisdiction over SpaceX OTA protest

By Courtney Albon / June 27, 2019

The Air Force is requesting the U.S. Court of Federal Claims dismiss SpaceX's recent protest of the service’s launch vehicle development competition, arguing the court does not have jurisdiction to consider the case.

The service argues in a redacted June 13 filing that because the awards in question -- made in October 2018 as part of its Launch Services Agreement program -- were other transaction agreements and not procurement contracts, they cannot be contested in Federal Claims Court.

"The court should dismiss SpaceX's complaint because it lacks jurisdiction to entertain this bid protest challenge to a non-procurement action," the Air Force stated. "The OT is a non-procurement agreement, and Congress has limited this court's bid protest jurisdiction to procurements."

The service awarded OTAs to Blue Origin, Northrop Grumman and United Launch Alliance to continue development of new launch vehicles. SpaceX, which along with ULA is one of two companies certified to launch national security space missions, did not receive an award. The Air Force has since issued a request for proposals for the next phase of competition, Launch Services Procurement, and has said the program is open to all potential providers, not just those awarded OTAs.

SpaceX filed an "agency objection" to the original LSA awards, which the service denied in early May. On May 17, SpaceX filed a lawsuit, claiming the source-selection process was "flawed and inconsistent" and contradicted the objectives of the program.

As for the question of jurisdiction, SpaceX argues that because the OTAs awarded as part of the LSA development phase are connected to a future procurement, Federal Claims Court should hear its case.

But the Air Force states that the LSA awards have no bearing on an eventual Launch Services Procurement decision and say the company's argument is "without merit." The service notes that while its strategy to draw competition and increased mission assurance to the military space launch market involves several phases, those phases are separate and discrete.

Northrop, Blue Origin and ULA have all signed on as "defendant-intervenors in the case."