SpaceX refutes Air Force's jurisdictional claims in launch services lawsuit

By Courtney Albon / July 12, 2019

SpaceX is pushing back on Air Force attempts to have the company's recent lawsuit dismissed, claiming in a document filed this week with the U.S. Court of Federal Claims that the court has jurisdiction to hear the case.

SpaceX filed its initial complaint May 17, arguing that the Air Force's Launch Services Agreement competition was "flawed and inconsistent" and seeking an injunction to keep the service from making further investment in the winning companies' launch vehicle development efforts.

The Air Force responded to the claim last month, writing in a June 13 filling that because the LSA awards were other transaction agreements and not procurement contracts, the Federal Claims Court has no jurisdiction to consider a protest. Although the OTAs were connected to a future procurement, the service argues they were a separate, distinct step in its acquisition strategy.

SpaceX's July 10 filing refutes the Air Force's claim, saying "the undisputed purpose" of the OTA awards was to invest in launch vehicle designs that would then compete for government launches in the next phase of competition, referred to as "Phase 2." The service's current plan is to award a slate of launches to two companies.

SpaceX argues that the LSA solicitation, which states that the awards are "intended to allow the Air Force to competitively procure launch services in the future from domestic commercial launch service providers," clearly states that there is a connection between the launch services agreements and the eventual launch procurements.

"[The] defendant’s arguments can be distilled to the following flawed premise -- the court lacks jurisdiction over violations of law in connection with a procurement or proposed procurement if an [OTA] is involved," SpaceX states.

The company goes on to argue that OTAs are not strictly exempt from legal challenge, as the Air Force suggests in its June 13 filing, and claims that the court does in fact have the grounds to consider OTAs that are connected to a procurement.

The Air Force awarded the OTAs in question, which totaled more than $2 billion, to Blue Origin, Northrop Grumman and United Launch Alliance in October 2018. SpaceX competed, but did not receive an award. The next phase of competition is open to all competitors, not just those partnering with the Air Force through the LSAs. The service released a request for proposals in May and expects to award launch services contracts to two companies next spring.