SpaceX EELV Complaint Document Available
Text of SpaceX Complaint vs The United States, SpaceRef Business
“The following is the introduction of the complaint filed by SpaceX with the U.S. Court of Federal Claims with respect to the recent EELV contract awarded to United Launch Alliance (ULA). The full complaint is also available for download.
Introduction:
1. The Air Force has entered into an unlawful contract for rocket launches with the United Launch Alliance (“ULA”), a joint venture between the government’s two biggest and most influential contractors, Boeing and Lockheed Martin (“Lockheed”). This complex and exclusive deal (the “ULA Contract’), which was concluded outside of public scrutiny, funnels hundreds of millions of U.S. taxpayer dollars to Russia’s military-industrial base, including monies that may flow to individuals on the U.S. sanctions list. Further, it defers meaningful free competition for years to come, costing taxpayers billions of dollars more. Beyond violating core tenets of government procurement law, the ULA Contract is dangerous, fiscally irresponsible, and offensive to American values of open competition and fairness.”
That is nicely written. Always favoring transparency on such an important cost reference as US EELV launches, I’m looking forward to the details in the arguments after this initial volley. That back and forth alone could be very valuable to SpaceX and embarrassing to the AF and ULA, regardless of what happens in the legal decisions.
We analysts have a saying when we can’t find good cost data about a program. It almost always means the cost data was either never collected, an incompetence, or the data is around, but no one wants it advertised, as too embarrassing.
SpaceX lawyers failed to include in their arguments that during the Senate committee hearing, ULA CEO Michael Gass stated that they have only a two year supply of RD-180s for the Atlas V. The two year supply of RD-180s could run dry well before the five year contract ends (Russian supplier). While ULA does have the Delta IV, it leaves the US Defense Department vulnerable. If the Delta IV, less reliable than Atlas V, were to have a launch failure, the DOD would be without a LV until the completion of analysis and resolution of the failure. Furthermore, a government analysis concluded recently that it could take 5 years or more and several billion dollars to begin producing RD-180s in the USA or to develop a replacement engine. Altogether, it leaves the taxpayer and DOD with a contractor that cannot assure delivery of intended products through the whole contract period.
Your point is valid but it’s a strategic argument, whereas the SpaceX complaint is primarily a legal and financial argument and focuses on their claim that the Air Force and ULA have not followed the law and have entered an agreement without proper oversight, and in an exclusive manner which did not allow competition, thus not serving the taxpayers well financially as well as being unfair to potential competitors like themselves.
They do repeatedly mention the reliance on Russian suppliers, knowing that is a hot topic at the moment, but their specific complaint stays within the financial aspect, with the main concern being that the Air Force is basically funding a sanctioned entity.
I am sure their lawyers believe that they have a powerful case already and probably they did not want to toss in other arguments, valid as they may be, but that stray outside of the legal and financial arguments. I’m sure they are counting on those other arguments taking place in other venues. This is just one specific complaint.
I agree. It is strategic. As you mention they refer to Russian dependence and sending funds to Russia in 6 of the 10 arguments with two specifically focused on the Russian issue.
They could have strengthened those references with the argument I stated. However, there is a weakness overall in the arguments involving Russia, too. The Russian issue arose after the awarding of the contract. The argument is akin to the Historian’s Fallacy or it could be seen as the fallacy – post hoc, ergo propter hoc.
The right legal argument for invalidating the contract is that it was simply not fairly competed. It seems rushed to favor ULA by preceding the imminent readiness of SpaceX to formally compete. The contract is constructed as if there is only a single source but also only a single customer for the product and therefore the government is obligated to maintain the whole operation not just purchase of the end product.
For anyone else who noticed the typo in the first sentence of section 7, this seems to have been an OCR error. If you download the original document PDF it correctly says “external auditors” and not “extremal auditors”. Although as it turns out extremal is an actual word but it’s normally used in mathematics not accounting.
I said it in a previous topic/thread…this SpaceX lawsuit is going to put a microscope upon DOD/USAF procurement practices, and specifically the sole-source EELV block buy — including the very questionable contract proviso that any decrease in launch demand would come out of the competitive bid portion…not the 36 cores guaranteed to ULA.
I can just see Spacex lawyers subpoenaing all sorts of records, communications and correspondences between USAF procurement office and ULA and their lobbyists. This amount of scrutiny could very well prove embarrassing to both USAF and ULA.
Elon Musk and SpaceX have decided enough is enough, and are taking off the proverbial gloves.
As Musk stated in his press conference…they have no issues with losing in a fair competition. The fundamental issue is that USAF/ULA took away SpaceX’s opportunity to compete, in the first place. To add salt to that wound, the USAF has cut in half the number of EELV cores open for competitive bid…while guaranteeing that ULA’s 36 cores are inviolable.