B-310741, Rocketplane Kistler, January 28, 2008

B-310741 Jan 28, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Rocketplane Kistler protests the terms of announcement No. JSC-COTS-2, issued by the National Aeronautics and Space Administration (NASA) for the award of a funded Space Act agreement for the development and demonstration of various space transportation capabilities to and from low-Earth orbit. Rocketplane contends that the solicited services must be acquired using a procurement contract. We deny the protest. View Decision B-310741, Rocketplane Kistler, January 28, 2008 Decision Matter of: Rocketplane Kistler File: B-310741 Date: January 28, 2008 James H. Roberts, III, Esq., Kevin F. Kelly, Esq., and Carrol H. Kinsey, Jr., Esq., Van Scoyoc Kelly PLLC, for the protester. Vincent A. Salgado, Esq., and Karen M. Reilley, 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 The National Aeronautics and Space Administration could use a Space Act agreement under that agency's –other transactions— authority, and was not required to use a procurement contract, for the development and demonstration of a space transportation system, where the principal purpose of the announcement was not to acquire goods or services for the direct benefit of the agency, but to stimulate a public purpose authorized by law. DECISION Rocketplane Kistler protests the terms of announcement No. JSC-COTS-2, issued by the National Aeronautics and Space Administration (NASA) for the award of a funded Space Act agreement for the development and demonstration of various space transportation capabilities to and from low-Earth orbit. Rocketplane contends that the solicited services must be acquired using a procurement contract. We deny the protest. NASA has established the Commercial Crew and Cargo program to: implement U.S. Space Exploration policy with investments to stimulate the commercial space industry, facilitate U.S. private industry demonstration of cargo and crew space transportation capabilities with the goal of achieving safe, 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.— Id. at 2. Phase 2 was described as a –planned competitive procurement of orbital transportation services to resupply the [International Space Station] with cargo and crew.— Id. The announcement here was issued as a continuation of the phase 1 development of the COTS project and stated that:[1] As a continuation of the project initiated in 2006, NASA intends to enter into a second round of agreements with private industry to develop and demonstrate the vehicles, systems, and operations needed to resupply, return cargo from, and transport crew to and from a human space facility, with the International Space Station providing the representative requirements for such a facility. Id. at 1. The announcement solicited proposals for demonstrations involving an end'to-end space transportation system of services including ground operations and integration, launch, rendezvous, proximity operations, docking or berthing, orbital operations, reentry, and safe disposal or return. Id. at 2. Instructions for the preparation of technical proposals and business plans were provided, and participants were informed that, based upon the evaluation of these proposals and plans, a firm, or firms, would be selected for the negotiation of funded Space Act agreement(s).[2] Id. at 16-24. The participants were informed that they were expected to secure the funding necessary to complete the proposed capability demonstration, although funding from NASA could be considered one of the sources of funding. In this regard, the announcement provided that NASA anticipated providing up to $174 million for funding spread over fiscal years 2008 through 2010 among the firm, or firms, selected for Space Act agreements. Id. at 12. The announcement also stated [p]ayments will be made upon the successful completion of performance milestones 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. A startup milestone payment will be considered. Id.