Blue Origin Loses NASA Moon Exploration Contract Suit

On Thursday, the Court of Federal Claims sided with the National Aeronautics and Space Administration (NASA) and intervenor Space Exploration Technologies Corp. (SpaceX) in a sealed opinion. For now, the judgment ends the lawsuit filed by Blue Origin Federation LLC against NASA over the Human Landing System (HLS) program contract awarded to competitor SpaceX. 

Though nearly the entire record is sealed, the August-filed complaint alleged that NASA’s evaluation of potential recipients for contracts under its HLS program was unfair, according to a TechCrunch article by Aria Alamalhodaei. The HLS program is a federally propelled initiative to create a lunar lander that could return humans to the moon in 2024, the article explained.

Blue Origin’s protest reportedly began after NASA announced that it had chosen SpaceX to develop the $2.9 billion lander. Alongside Dynetics, a defense contractor, Blue Origin complained to the Government Accountability Office (GAO) that awarding a single contract was anti-competitive and that the selection process was tainted.

According to TechCrunch, the GAO dismissed the administrative complaint. Though it acknowledged that NASA deviated from precedent by awarding the contract to a single provider, the GAO allegedly determined that NASA was able to tap less funds than anticipated and was therefore hamstrung.

The news outlet also reported that at about the same time, Blue Origin founder Jeff Bezos wrote to NASA’s administrator with an offer. The open letter stated that Blue Origin would ease budgetary concerns by developing a lander for $2 billion less than the cost initially quoted, and would self-fund a “pathfinder mission,” if given a contract. The effort was apparently to no avail, and in August, Blue Origin filed suit under the Tucker Act, a statute waiving the federal government’s sovereign immunity for certain claims. 

Elon Musk’s SpaceX intervened and, according to the judgment, the court granted it and NASA’s motions for judgment on the administrative record as well as NASA’s motion to dismiss. According to the docket, the parties have been directed to propose redactions to the opinion by November 18, indicating that a public version may soon be available.

Blue Origin is represented by Barnes & Thornburg LLP and SpaceX by Arnold & Porter Kaye Scholer LLP