Blue Origin Federation, LLC v. United States

On 13 August 2021, Blue Origin filed a complaint to the United States Court of Federal Claims about NASA's award of $2.9 billion to SpaceX. The award was used by the company to further develop Starship HLS, a lunar lander that NASA selected for the Artemis program. On 4 November 2021, the Court of Federal Claims dismissed the complaint, and the accompanying memorandum opinion was titled Blue Origin v. United States & Space Exploration Technologies Corp. Blue Origin's complaint and prior actions have received attention from the news media and spaceflight industries.

Blue Origin Federation, LLC v. United States
Court	United States Court of Federal Claims
Full case name	Blue Origin LLC v. United States of America & Space Exploration Technologies Corporation
Decided	4 November 2021
Case opinions
Complaint from Blue Origin is dismissed, NASA is allowed to award SpaceX for developing Starship HLS

Background

In December 2018, NASA announced it was seeking lunar lander proposals under the Artemis program, which is released under Appendix E of its NeXTSTEP-2 program.^[1]

Government Accountability Office

On 26 April 2021, both Blue Origin and Dynetics filed formal protests with the US Government Accountability Office claiming that NASA had improperly evaluated aspects of the proposals.^[2][3] On 30 April 2021, NASA suspended the Starship HLS contract and funding until such time as the GAO could issue a ruling on the protests.^[4][5] In May 2021, Sen. Cantwell, from Blue Origin's state of Washington, introduced an amendment to the "Endless Frontier Act" that directed NASA to reopen the HLS competition and select a second lander proposal, authorized spending of an additional US$10 billion. This funding would require a separate appropriations act. Sen. Sanders criticized the amendment as a "multibillion dollar Bezos bailout", as the money would likely go to Blue Origin, which was founded by Jeff Bezos.^[6][7][8][9] The act, including this amendment, was passed by the Senate on 8 June 2021.^{[10][11][needs update]}

On 30 July 2021, the GAO rejected the protests and found that "NASA did not violate procurement law" in awarding the contract to SpaceX, who bid a much lower cost and more capable system.^[12][13][14] NASA made the contracted initial payment of US$300M to SpaceX the same day.^[15]

CNBC reported on 4 August that "Jeff Bezos' space company remains on the offensive in criticizing NASA's decision to award Elon Musk's SpaceX with the sole contract to build a vehicle to land astronauts on the moon" and that the company had produced an infographic promoting Blue Origin's design over SpaceX's design while leaving out the difference in contract bid prices.^[16]

Filing

On 13 August 2021, Blue Origin filed a lawsuit in the US Court of Federal Claims challenging "NASA's unlawful and improper evaluation of proposals."^[17][18] Blue Origin asked the court for an injunction to halt further spending by NASA on the existing contract with SpaceX.^[19] Reaction to the lawsuit was mostly negative in the space community, at NASA, and among Blue Origin employees according to space journalist Eric Berger.^[20] The judge dismissed the suit on 4 November 2021 and NASA was allowed to resume working with SpaceX.^[21]

Outcome

According to a filing in the Court of Federal Claims dated November 4, 2021, the case was dismissed. The decision was made after the facts of the case were considered by the Court of Federal Claims. The presiding judge was Richard A. Hertling. The court's finding provided in the document clarified that Blue Origin failed to establish foul play by NASA. Therefore, Blue Origin failed on merits, and its complaint was dismissed.^[22]

About two years later in May 2023 NASA awarded Blue Origin a $3.4 billion contract to develop a competing moon lander, compared to the $2.89 billion of the original bid that lead to the lawsuit.^[21][23] NASA noted that "adding another human landing system partner to NASA’s Artemis program will increase competition, reduce costs to taxpayers, support a regular cadence of lunar landings, further invest in the lunar economy, and help NASA achieve its goals on and around the Moon in preparation for future astronaut missions to Mars."^[23]

Prominence

According to Eric Berger from Ars Technica many in the space community, including some of Blue Origin's employees, reacted negatively to the company's complaint and related actions.^[24]

See also

• Artemis HLS development history
• Billionaire space race § SpaceX vs. Blue Origin
• Lunar Gateway

References

1. Shanessa Jackson (December 12, 2018). "NASA Seeks US Partners to Develop Reusable Systems to Land Astronauts on Moon". NASA. Retrieved December 13, 2018.
2. "Blue Origin protests NASA Human Landing System award". SpaceNews. April 26, 2021. Archived from the original on October 20, 2021. Retrieved April 28, 2021.
3. "Dynetics protests NASA HLS award". SpaceNews. April 27, 2021. Archived from the original on October 20, 2021. Retrieved April 28, 2021.
4. "NASA suspends SpaceX's $2.9 billion moon lander contract after rivals protest". The Verge. April 30, 2021. from the original on August 28, 2021. Retrieved September 12, 2021.
5. "NASA tells SpaceX to halt lunar lander work pending contract challenges". CNBC. May 2021. from the original on July 13, 2021. Retrieved September 12, 2021.
6. Sirota, Sara; Grim, Ryan (May 25, 2021). "Senate Preparing $10 Billion Bailout Fund for Jeff Bezos Space Firm". The Intercept. from the original on June 2, 2021. Retrieved June 2, 2021.
7. Ferreira, Becky (May 26, 2021). "Bernie Sanders Is Fighting a Massive "Bailout" to Jeff Bezos' Space Company". Vice. from the original on June 2, 2021. Retrieved June 2, 2021.
8. Berger, Eric (May 24, 2021). "Bernie vs. Blue – Bernie Sanders wants to stop NASA funding for Blue Origin". Ars Technica. from the original on June 1, 2021. Retrieved June 2, 2021.
9. Hamilton, Isobel (May 25, 2021). "Bernie Sanders is trying to block Jeff Bezos' Blue Origin from getting $10 billion NASA funding for a moon-landing mission". Business Insider. from the original on June 1, 2021. Retrieved June 2, 2021.
10. "S.1260 - Endless Frontier Act". Congress.gov. June 8, 2021. from the original on June 9, 2021. Retrieved June 10, 2021.
11. Berger, Eric (June 10, 2021). "NASA doesn't need to test SLS anymore, but the Senate mandates it anyway". Ars Technica. from the original on June 10, 2021. Retrieved June 10, 2021.
12. "GAO finding denying the protest of the award". July 30, 2021. from the original on August 29, 2021. Retrieved September 22, 2021.
13. Foust, Jeff (July 30, 2021). "GAO denies Blue Origin and Dynetics protests of NASA lunar lander contract". SpaceNews. from the original on September 18, 2021. Retrieved August 2, 2021.
14. "Statement on Blue Origin-Dynetics Decision". July 30, 2021. from the original on September 18, 2021. Retrieved September 12, 2021.
15. "SpaceX Gets Huge Check From NASA for Moon Mission". Futurism. Retrieved November 20, 2023.
16. Sheetz, Michael (August 4, 2021). "Bezos' Blue Origin calls Musk's Starship 'immensely complex & high risk' for NASA moon missions". CNBC. from the original on August 4, 2021. Retrieved August 4, 2021.
17. "Jeff Bezos' Blue Origin sues NASA, escalating its fight for a Moon lander contract". The Verge. August 16, 2021. from the original on August 16, 2021. Retrieved August 16, 2021. protest prevented SpaceX from starting its contract for 95 days while the GAO adjudicated the case.
18. Sheetz, Michael (August 16, 2021). "Bezos' Blue Origin takes NASA to federal court over award of lunar lander contract to SpaceX". CNBC. from the original on August 16, 2021. Retrieved August 16, 2021.
19. "Jeff Bezos's Blue Origin takes its lunar rivalry with Elon Musk's SpaceX to claims court - the Washington Post". The Washington Post. from the original on August 17, 2021. Retrieved September 12, 2021.
20. Berger, Eric (August 16, 2021). "Here's why Blue Origin thinks it is justified in continuing to protest NASA". Ars Technica. from the original on August 18, 2021. Retrieved September 12, 2021.
21. Sheetz, Michael (November 4, 2021). ""Bezos' Blue Origin loses NASA lawsuit over SpaceX $2.9 billion lunar lander contract"". CNBC. Retrieved November 4, 2021.
22. Blue Origin v. United States & Space Exploration Technologies Corp (Federal Court of Public Opinion November 4, 2021).
23. "NASA Selects Blue Origin as Second Artemis Lunar Lander Provider". Retrieved May 19, 2023.
24. Berger, Eric (August 16, 2021). "Here's why Blue Origin thinks it is justified in continuing to protest NASA". Ars Technica. from the original on August 18, 2021. Retrieved September 12, 2021.