GAO backs NASA decision to rely on SpaceX Starship for Moon landing, dismissing Blue Origin-backed protest

SpaceX Starship will officially be the single solution for the first lunar landing mission under NASA’s Artemis program to return to the Moon. This comes after the US GAO backed the decision to use Starship as the lander, stating it didn’t break any laws with the selection. The space agency first announced its decision to land astronauts on the Moon with SpaceX in April, but legal protests from the Blue Origin-led National Team and Dynetics halted progress for the contract.

In a mid-Friday press release, the U.S. Government Accountability Office sided with NASA in choosing SpaceX over its competitors while utilizing a single lunar landing system for early Artemis missions. SpaceX is tasked with developing a version of its Starship rocket that will transport astronauts from the Orion capsule in lunar orbit to the surface of the Moon. NASA’s Space Launch System (SLS) rocket will launch from Cape Canaveral, Florida, to transport the crewed Orion spacecraft to lunar orbit.

Just last week, Blue Origin founder Jeff Bezos published a public statement in which the billionaire offered to cover a substantial amount of cost for NASA if the National Team (Blue Origin, Lockheed Martin, Northrop Grumman, and Draper) were selected as a second lunar landing system provider. While it’s certainly possible NASA could still consider that rather creative offer to include Blue Origin in America’s return to the Moon, it won’t be because NASA is forced to reconsider its selection.

Here’s the full statement from the GAO:

[9to5-press-release]

Statement on Blue Origin-Dynetics Decision

The following is a statement from Kenneth E. Patton, Managing Associate General Counsel for Procurement Law at GAO, regarding today’s decision resolving the protests filed by Blue Origin Federation, LLC, and Dynetics, Inc. – A Leidos Company, B-417839 et al., Friday, July 30, 2021.

On Friday, July 30, 2021, the U.S. Government Accountability Office (GAO) denied protests filed by Blue Origin Federation, LLC, of South Kent, Washington, and Dynetics, Inc.-A Leidos Company, of Huntsville, Alabama.  The protesters challenged their non-selection for awards and the award of optional contract line item numbers to Space Exploration Technologies Corp. (SpaceX), of Hawthorne, California, under Option A to Appendix H of Broad Agency Announcement (the announcement) No. NNH19ZCQ001K.  Broad Agency Announcements typically provide for the acquisition of basic and applied research for new and creative research or development solutions to scientific and engineering problems.  The rules for these procurements are not the same as those for standard competitive federal procurements, as agencies generally enjoy broader discretion in selecting the proposals most suitable to meeting their research and development needs when utilizing broad agency announcement procedures.  The announcement was issued by the National Aeronautics and Space Administration (NASA), for a demonstration mission for a human landing system for lunar exploration.  

NASA made award to SpaceX for a total evaluated price of $2,941,394,557.  After noting that SpaceX submitted the lowest-priced proposal with the highest rating, and that the offers submitted by Blue Origin and Dynetics were significantly higher in price, NASA also concluded that the agency lacked the necessary funding to make more than one award.   

In the challenge filed at GAO, the protesters argued that the agency was required to make multiple awards consistent with the announcement’s stated preference for multiple awards.  Alternatively, the protesters alleged that the agency was required to open discussions, amend, or cancel the announcement when NASA, after the receipt of proposals, determined that it had less funding than it needed to support multiple HLS awards.  The protesters also argued that NASA unreasonably evaluated all three of the proposals.  Finally, the protesters argued that NASA improperly waived a mandatory solicitation requirement for SpaceX.

In denying the protests, GAO first concluded that NASA did not violate procurement law or regulation when it decided to make only one award.  NASA’s announcement provided that the number of awards the agency would make was subject to the amount of funding available for the program.  In addition, the announcement reserved the right to make multiple awards, a single award, or no award at all.  In reaching its award decision, NASA concluded that it only had sufficient funding for one contract award.  GAO further concluded there was no requirement for NASA to engage in discussions, amend, or cancel the announcement as a result of the amount of funding available for the program.  As a result, GAO denied the protest arguments that NASA acted improperly in making a single award to SpaceX.   

GAO next concluded that the evaluation of all three proposals was reasonable, and consistent with applicable procurement law, regulation, and the announcement’s terms.  

Finally, GAO agreed with the protesters that in one limited instance NASA waived a requirement of the announcement for SpaceX.  Despite this finding, the decision also concludes that the protesters could not establish any reasonable possibility of competitive prejudice arising from this limited discrepancy in the evaluation.     

GAO’s decision expresses no view as to the merits of these proposals.  Judgments about which offeror will most successfully meet the government’s needs are reserved for the procuring agencies, subject only to statutory and regulatory requirements.  GAO’s bid protest process is handled by GAO’s Office of General Counsel and examines whether procuring agencies have complied with procurement laws and regulations.

Today’s decision was issued under a protective order because the decision may contain proprietary and source selection sensitive information.  GAO has directed counsel for the parties to promptly identify information that cannot be publicly released so that GAO can expeditiously prepare and release a public version of the decision.  When the public version of the decision is available, it will be posted to our website, “www.gao.gov.”

For more information, please contact Kenneth E. Patton at 202-512-8205, Ralph O. White at 202-512-8278, or Sarah Kaczmarek at 202-512-4800.  More information about GAO’s Bid Protest process is also available on the GAO website.

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The Government Accountability Office, known as the investigative arm of Congress, is an independent, nonpartisan agency that exists to support Congress in meeting its constitutional responsibilities.  GAO also works to improve the performance of the federal government and ensure its accountability to the American people.  The agency examines the use of public funds; evaluates federal programs and policies; and provides analyses, recommendations, and other assistance to help Congress make informed oversight, policy, and funding decisions.  GAO provides Congress with timely information that is objective, fact-based, nonideological, fair, and balanced.  GAO’s commitment to good government is reflected in its core values of accountability, integrity, and reliability.

[/9to5-press-release]

NASA published a late Friday afternoon statement following the GAO decision:

“NASA was notified Friday, July 30, that the U.S. Government Accountability Office has denied the protests filed by Blue Origin Federation and Dynetics and has upheld the agency’s source selection of SpaceX to continue the development of its human landing system. The decision enables NASA to award the contract that will ultimately result in the first crewed demonstration landing on the surface of the Moon under NASA’s Artemis plan. Importantly, the GAO’s decision will allow NASA and SpaceX to establish a timeline for the first crewed landing on the Moon in more than 50 years.

“NASA recognizes that sending American astronauts back to the Moon for the first time since the Apollo program and establishing a long-term presence on the Moon is a priority for the Biden Administration and is imperative for maintaining American leadership in space. In the face of challenges during the last year, NASA and its partners have made significant achievements to advance Artemis, including a successful hot fire test for the Space Launch System rocket. An uncrewed flight of Artemis I is on track for this year and a crewed Artemis II mission is planned for 2023. 

“NASA is moving forward with urgency, but astronaut safety is the priority and the agency will not sacrifice the safety of the crew in the steadfast pursuit of the goal to establish a long-term presence on the Moon.

“As soon as possible, NASA will provide an update on the way ahead for Artemis, the human landing system, and humanity’s return to the Moon. We will continue to work with the Biden Administration and Congress to ensure funding for a robust and sustainable approach for the nation’s return to the Moon in a collaborative effort with U.S. commercial partners.” 

Further Reading: https://www.gao.gov/assets/b-419783.pdf

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