B-298804, Exploration Partners, LLC, December 19, 2006

B-298804 Dec 19, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Exploration Partners, LLC protests the issuance of funded Space Act agreements to Space Exploration Technologies Corporation (SpaceX) and Rocketplane Kistler Limited Incorporated by the National Aeronautics and Space Administration (NASA) under announcement No. COTS-01-05, which solicited research and development proposals in support of the agency's Commercial Crew/Cargo Project Office. We dismiss the protest. View Decision B-298804, Exploration Partners, LLC, December 19, 2006 Decision Matter of: Exploration Partners, LLC File: B-298804 Date: December 19, 2006 Royce Jones for the protester. James H. Roberts, III, Esq., Van Scoyoc Kelly PLLC, for Rocketplane Kistler, the intervenor. Vincent A. Salgado, Esq., Eve Lyon, Esq., Amy Voigt, Esq., and Jonathan A. Arena, Esq., National Aeronautics and Space Administration, for the agency. Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Under the Competition in Contracting Act of 1984 and GAO's Bid Protest Regulations, GAO will not review the issuance of Space Act agreements pursuant to agency's –other transactions— authority, because the issuance of the Space Act agreements pursuant to that authority was not tantamount to the award of contracts for the procurement of goods and services and was, therefore, outside GAO's bid protest jurisdiction; GAO will review, however, a timely protest that an agency improperly used a non-procurement instrument, such as an –other transactions— instrument, where a procurement contract was required. DECISION Exploration Partners, LLC protests the issuance of funded Space Act agreements to Space Exploration Technologies Corporation (SpaceX) and Rocketplane Kistler Limited Incorporated by the National Aeronautics and Space Administration (NASA) under announcement No. COTS-01-05, which solicited research and development proposals in support of the agency's Commercial Crew/Cargo Project Office. We dismiss the protest. –Space Act— agreements are issued by NASA under its –other transactions— authority pursuant to the National Aeronautics and Space Act of 1958 (the –Space Act—). 42 U.S.C. sect. 2473(c)(5) (2000). A –Funded Space Act Agreement— is –an agreement under which appropriated funds will be transferred to a domestic agreement partner to accomplish an Agency mission, but whose objective cannot be accomplished by the use of a contract, grant, or Chiles Act cooperative agreement.— NASA Policy Directive, NPD 1050.1G, Nov. 13, 1998, at 1-2. NASA established the Commercial Crew/Cargo project to: implement U.S. Space Exploration policy with an investment to stimulate commercial enterprises in space, facilitate U.S. private industry demonstration of cargo and crew space transportation capabilities with the goal of achieving reliable, cost effective access to low-Earth orbit, and create a market environment in which commercial space transportation services are available to Government and private sector customers. Announcement at 1. In support of these objectives, NASA informed interested firms that the agency envisioned a two-phased approach to be known as the commercial orbital transportation (COTS) project. Phase 1 was described as a –period of development and demonstration by private industry, in coordination with NASA, of various space transportation capabilities . . . determined to be most desirable for the Government and other customers.— Phase 2 was described as a –potential competitive procurement of orbital transportation services to resupply the [International Space Station] with cargo and crew, if a capability is successfully demonstrated and the Government determines it is in its best interest.— NASA issued the announcement, which is the subject of this protest, to implement phase 1 of the COTS project and stated that the agency intended to enter into –at least one and preferably multiple— funded Space Act agreement(s). Id. at 2. Firms were also informed that NASA anticipated providing funding of up to $500 million over a 4-year period; firms were also informed that –[i]n order to maximize capability coverage, participants are expected to secure additional funds to supplement the NASA funding.— Id. at 12. In this regard, the announcement stated Payments will be made upon the successful completion of performance milestones as proposed by the participants and negotiated with NASA. NASA's contribution will be a fixed amount and will not be increased based on the participant's ability to obtain private funding. Id. at 3. The announcement requested proposals from interested firms and provided instructions for the preparation of proposals.