The U.S. Court of Federal Claims issued a verbal decision today declining to overrule NASA on its decision to allow SpaceX and Boeing to proceed in executing the Commercial Crew Transportation Capability (CCtCAP) contracts. Sierra Nevada Corporation (SNC) is suing the government over NASA's October 9 decision to rescind a previously issued stop-work order while SNC's protest of the contract awards is under consideration by the Government Accountability Office (GAO).
In a terse statement, Judge Marilyn Blank Horn said:
"On October 21, 2014, the court held a hearing in the above captioned protest. Given the urgency to resolve the override issue, the court provided the parties with a verbal decision declining to overrule the override."
"Override" refers to NASA overriding a provision of the Competition in Contracting Act (CICA) under which work on a contract ordinarily would cease while a protest of the contract award is pending. NASA initially issued a stop-work order to Boeing and SpaceX in compliance with CICA after SNC filed its protest with GAO. On October 9, however, it rescinded that order, overriding the CICA requirement, on the basis that its statutory authority allowed it to avoid serious adverse consequences.
SNC's suit before this court is that NASA did not demonstrate those serious adverse consequences in overriding the CICA requirements and the override was "illegal and void."
GAO has until January 5, 2015 to rule on SNC's underlying protest of the contract awards. At the time it filed the protest, SNC said it found "serious questions and inconsistencies in the source selection process."
Boeing, SpaceX and SNC are all being funded under the Commercial Crew Integrated Capability (CCiCAP) phase of the commercial crew program. On September 16, NASA selected Boeing and SpaceX to continue on to the next phase, CCtCAP, under which each company is expected to complete work on new commercial crew space transportation systems to take NASA astronauts to and from the International Space Station by the end of 2017. Both designs are capsules: Boeing's CST-100 and SpaceX's Dragon V2. SNC's design is a winged vehicle, Dream Chaser, that resembles a small space shuttle.
Ann Zulkosky, the top Senate Democratic staffer dealing with NASA issues on the Senate Commerce, Science, and Transportation Committee, is leaving to join Lockheed Martin.
Zulkosky is a member of the Democratic professional staff of the committee, which is chaired by Senator Jay Rockefeller (D-WV). Rockefeller is retiring at the end of this Congress and committee staff changes are common when the chairperson retires. Zulkosky has been handling a variety of science issues, but is best known in space policy circles for her work on NASA issues with Senator Bill Nelson (D-FL), who chairs the committee's Science and Space Subcommittee.
Zulkosky and her Republican staff counterpart, Jeff Bingham, working with Nelson and the committee's top Republican at the time, Senator Kay Bailey Hutichison (R-TX), are largely credited with writing the 2010 NASA Authorization Act, a hard fought compromise between the Obama Administration and congressional Democrats and Republicans. Bingham retired last year.
The 2010 law included funding recommendations only through FY2013, which has expired, but the policy provisions remain in force. Key policy provisions allowed the Obama Administration to proceed with the commercial crew program to develop crew transportation systems to ferry astronauts to and from the International Space Station (ISS), while insisting that NASA also develop a new spacecraft (Orion) and rocket (the Space Launch System) to take astronauts beyond low Earth orbit.
The House passed a new NASA authorization bill in June. Senate action is expected next, but that may be more difficult to achieve with Zulkosky's departure.
In an email this evening, Zulkosky confirmed that she is headed to Lockheed Martin as Director of NASA Programs, succeeding Mike Hawes. Hawes was recently tapped to replace Cleon Lacefield as the company's vice president and program manager for Orion.
Here is our list of space policy-related events in the coming week, October 20-24, 2014, and any insights we can offer about them. Congress returns on November 12.
During the Week
The U.S. Court of Federal Claims has scheduled a second hearing on Sierra Nevada Corporation's (SNC's) lawsuit against the government vis a vis the Commercial Crew Transportation Capability (CCtCAP) contracts for Tuesday at 2:30 pm ET (it's not listed on our calendar because we don't list court dates for lawsuits since they are rarely open to the public). The first hearing was on Friday, where the court allowed SpaceX and Boeing to intervene in the case. The court is also considering SNC's request to keep most of the filings under seal because some of the material may be proprietary and some is protected under SNC's protest to the Government Accountability Office (GAO). SNC is protesting NASA's award of the CCtCAP contracts to Boeing and SpaceX. Ordinarily, under the Competition in Contracting Act (CICA), work would stop under those contracts until GAO rules on SNC's protest (it has until January 5, 2015). NASA did issue a stop-work order, but later rescinded it based on its statutory authority to avoid significant adverse consequences. SNC is challenging the legality of that rescission. Check back with SpacePolicyOnline.com to learn about what happens on Tuesday.
There are many other interesting events on tap during the week as well. On Monday, the United Nations Office of Outer Space Affairs (which administers the UN Committee on Peaceful Uses of Outer Space), the Mexican Space Agency and another Mexican organization, CICESE, will hold a symposium on Making Space Technology Accessible and Affordable. The opening ceremony and a press conference -- including the head of the Mexican Space Agency, Javier Mendieta -- will be webcast.
The third of three International Space Station (ISS) spacewalks in as many weeks is scheduled for Wednesday. This time it is two Russians, Max Suraev and Alexander Samokutyaev, who will step outside. NASA TV will cover it beginning at 9:00 am ET.
Two very interesting luncheons are being held in the Washington, DC area on Thursday, unfortunately at exactly the same time. The Washington Space Business Roundtable is hosting a panel of experts on the future of satellite communications in support of DOD at the University Club is downtown DC, while the National Capital Section of the American Institute of Aeronautics is hearing from NASA Goddard Space Flight Center Chris Scolese across the river in Arlington, VA. Not to mention that there's an all-day symposium in DC that day on space and satellite regulatory issues. Busy day!
Those and other events we know about as of Sunday afternoon are listed below.
Monday, October 20
Wednesday, October 22
Wednesday-Sunday, October 22-26
Thursday, October 23
Comet Siding Spring will make a close pass of the planet Mars tomorrow (Sunday, October 19) while human and robotic observers watch intently to see what they can learn about this rather rare type of celestial body. On Earth, the best viewing is from the Southern Hemisphere and it will not be visible to the naked eye (Magnitude 13), but several websites plan live coverage with images and/or commentary.
Astronomers world-wide have been eagerly awaiting the arrival of Comet Siding Spring, also known as C/2013 A1, which was discovered in January 2013 by Robert McNaught at the Siding Spring Observatory in Australia. This particular type of comet, from the Oort Cloud far beyond the orbit of Pluto, rarely reaches the inner solar system. This is the comet's first time sweeping around the Sun so none of its material has yet been affected by the Sun's heat. It is comprised of material from the time the solar system was formed 4.6 billion years ago.
The nucleus of the comet will come within 87,000 miles (140,000 kilometers) of the surface of Mars at 2:28 pm Eastern Daylight Time (11:28 am PDT, 18:28 GMT). It will pass Mars traveling at 126,000 miles per hour (56 kilometers per second).
Five spacecraft are currently orbiting Mars: three from NASA and one each from the European Space Agency (ESA) and the Indian Space Research Organization (ISRO). In addition, two functioning NASA rovers are on the surface: Opportunity and Curiosity. All will be tasked to study the comet and its interaction with Mars.
To be on the safe side, NASA positioned its orbiters -- Mars Odyssey, Mars Reconnaissance Orbiter, and MAVEN -- so they will be on the opposite side of the planet as the comet's tail passes by lest any of the particles damage spacecraft instruments. ISRO similarly repositioned its Mars Orbiter Mission (MOM). The European Space Agency decided that the risk of damage to its Mars Express orbiter was so low that it did not change its orbit. The tail will be in close proximity to Mars about 90 minutes after the nucleus goes by and will be there for only about 20 minutes.
Many other space- and Earth-based observatories will study the comet as well. NASA has a website with a wealth of information about its plans.
Comet expert Karl Battams posted an analysis of the parallels between observing this comet and last year's comet ISON, which was a disappointment for many observers because the comet was not as spectacular as expected. Today Battams said in his blog post that the same phenomenon has occurred with Comet Siding Spring: "...again, like comet ISON - we have watched nervously in these final couple of weeks ... as the comet has suddenly and dramatically faded in brightness. This in particular has left us scratching our collective heads...." Still, although "we have plenty of unknowns," he is optimistic for a successful Mars-based observing campaign.
He (@SungrazerComets) and the Planetary Society's Emily Lakdawalla (@elakdawalla) are among those who will be tweeting the event (#MarsComet or #SidingSpring). Both list places on the web that will have live images and/or commentary:
At today's hearing before the U.S. Court of Federal Claims, Boeing and SpaceX were granted their requests to intervene in Sierra Nevada Corporation's (SNC's) lawsuit to force NASA to reinstate a stop-work order on the Commercial Crew Transportation Capability (CCtCAP) contracts.
SNC filed suit on Wednesday asking the court to declare "illegal and void" NASA's October 9 decision to override provisions of the Competition in Contracting Act (CICA) so that work could proceed under the CCtCAP contracts despite SNC's protest of the award. Today was the first hearing in the case.
Boeing, SpaceX and SNC are all being funded under the current phase of NASA's commercial crew program -- the Commercial Crew Integrated Capability (CCiCAP) phase. On September 16, NASA selected Boeing and SpaceX to continue into the next phase, CCtCAP. Sierra Nevada filed a protest against that decision with the Government Accountability Office (GAO) on September 26. NASA issued a stop-work order to Boeing and SpaceX on the CCtCAP contracts because of the protest, but rescinded it on October 9 arguing that it was acting under its statutory authority to avoid serious adverse consequences.
That prompted SNC to file this lawsuit against the U.S. Government on the basis that NASA had not demonstrated that it could not wait until GAO issued its ruling on SNC's protest. GAO has until January 5, 2015 to make its determination.
Today, Judge Marian Blank Horn granted motions from Boeing and SpaceX to "intervene" in the case and ordered that they file their submissions by Monday, October 20, at noon. The next hearing is scheduled for Tuesday, October 21, at 2:30 pm ET.
The commercial crew program is essentially a public-private partnership where the government and the private sector are sharing the costs of developing new crew space transportation systems to take astronauts to and from the International Space Station (ISS) with NASA serving as a market for the resulting services. CCtCAP is the final phase of the development program, leading, NASA hopes, to operational systems by the end of 2017. Until commercial crew systems are operational, NASA must rely on Russia to take crews to and from ISS because the space shuttle was terminated in 2011.
President Obama has nominated Dava Newman to be the new NASA Deputy Administrator. The post has been vacant since Lori Garver left in September 2013.
Newman is a Professor of Aeronautics and Astronautics and Engineering Systems at MIT and is perhaps best known for her design of spacesuits specifically for use on Mars. She explains the theories behind the design in a YouTube video posted in 2011.
In a press release issued by MIT, Newman calls her nomination "very exciting, and an enormous honor" adding that NASA has a "clear vision" with Mars as the destination in its long term plan. She is very familiar with NASA's current challenges in the human spaceflight arena having served as a member of the Technical Panel of the National Research Council's (NRC's) "Pathways" report on the future of human spaceflight released this summer. She is also a member of the NRC's Space Studies Board.
MIT's Dr. Dava Newman. Photo Credit: MIT.
In addition to her duties as an engineering professor, she is director of MIT's Technology and Policy Program, Director of the MIT Portugal Program, co-director of the Man-Vehicle Laboratory at MIT, and a Harvard-MIT Health, Sciences and Technology faculty member. She has a B.S. from the University of Notre Dame and two S.M.'s (one in aeronautics and astronautics, the other in technology and policy) and a Ph.D. (in aerospace biomedical engineering) from MIT.
Her nomination must be approved by the Senate. Congress returns on November 12. Whether the Senate will have time to consider her nomination before the 113th Congress adjourns is unclear. There are few legislative days remaining, but that hurdle is surmountable if both sides of the aisle agree.
Sierra Nevada Corporation (SNC) filed a lawsuit in the U.S. Court of Federal Claims yesterday asking the court essentially to overturn NASA's decision to allow work to proceed under the Commercial Crew Transportation Capability (CCtCAP) contracts. SNC is protesting NASA's award of those contracts to Boeing and SpaceX and ordinarily work would stop until the protest was resolved. NASA initially told the companies to stop work, but rescinded that order about a week later, triggering SNC's lawsuit. A hearing on SNC's suit is scheduled for tomorrow morning (Friday, October 17).
Sierra Nevada, Boeing and SpaceX are all being funded under the current phase of NASA's commercial crew program -- Commercial Crew Integrated Capability (CCiCAP). Those three companies, at least, bid for the CCtCAP phase which will lead to operational commercial crew systems to take astronauts to and from the International Space Station. NASA selected Boeing and SpaceX for CCtCAP on September 16.
On September 26, SNC filed a protest with the Government Accountability Office (GAO) because it found "serious questions and inconsistencies in the source selection process." GAO has 100 days (until January 5, 2015) to rule on the protest.
NASA issued a stop-work order to Boeing and SpaceX because of the protest. The stop-work order affects only the CCtCAP contracts, not work under the CCiCAP agreements.
However, on October 9, NASA rescinded the stop-work order, overriding provisions of the Competition in Contracting Act (CICA) on the basis that it was acting within statutory authority to avoid significant adverse consequences.
In filing its lawsuit in the U.S. Court of Federal Claims, SNC asserts that NASA's override decision was "illegal and void" because the government failed to establish that "performance of the contract is in the best interest of the United States" or "urgent and compelling circumstance that significantly affect the interests of the United States will not permit waiting" for the GAO decision. SNC calls NASA's override decision "arbitrary and capricious, an abuse of discretion and ... contrary to law, all in violation of the Administrative Procedures Act...."
SNC asks the court to declare NASA's override "illegal and void" or alternatively to "preliminarily enjoin the Defendant from further implementing" the override -- in other words, to reinstate the stop-work order -- until the court issues a final judgment on the matter.
Because SNC's filing to the court relies on material subject to a GAO protective order (because of its bid protest to GAO) and on other material that may contain proprietary information, SNC further requests the court to keep the primary documents it filed with the court (memorandum and appendix) under seal. For now, at least, only a few of SNC's documents are available to the public through the court's PACER electronic system: Plaintiff's Motion for Leave to File Documents Under Seal and Motion for a Protective Order, Motion for Declaratory and Injunctive Relief, and Plaintiff's Applications for a Temporary Restraining Order to Prevent Unlawful Override of CICA Stay.
The court has scheduled a hearing on the case, Sierra Nevada Corporation v United States, before Judge Marian Blank Horn for 10:00 am ET tomorrow, October 17.
NASA and Orbital Sciences Corporation decided today to delay the launch of Orbital's third operational cargo mission (Orb-3) to the International Space Station (ISS) until at least October 27 because Hurricane Gonzalo is bearing down on Bermuda. One of the tracking sites used for Orbital's launches from NASA's Wallops Flight Facility is located in Bermuda.
The announcement on Orbital's website stresses that the October 27 date is tentative since the impact of the storm on Bermuda's infrastructure will not be known until the storm passes.
As of 5:00 pm ET today (October 15), Gonzalo is a Category Three hurricane with maximum sustained winds of 125 miles per hour and higher gusts. Bermuda is expected to feel the brunt of it on Friday with a "dangerous storm surge" accompanied by "large and destructive waves" according to the National Hurricane Center.
The mobile tracking station is located on Cooper's Island, Bermuda.
NASA/Wallops Bermuda Tracking Site. Photo Credit: NASA/Wallops.
Orbital launches its commercial cargo missions to the ISS from the Mid-Atlantic Regional Spaceport (MARS) at NASA's Wallops Flight Facility on the coast of Virginia. NASA and Bermuda signed an agreement in March 2012 to place a tracking site there to support such launches. NASA/Wallops Deputy Range Director Steven Kremer said at the time that "[o]wning, deploying and controlling our own assets means control over scheduling ... and higher confidence in promising range availability to our customers...." The tracking station provides telemetry, radar and command and control services.
Originally scheduled for October 14, the Orb-3 launch was delayed to October 20 and then October 24 primarily because of the busy schedule of activities aboard the ISS, including three spacewalks this month (the second was completed today) and the arrival and departure of other cargo spacecraft including Russia's Progress and SpaceX's Dragon.
If the launch takes place on October 27, the launch time is 6:44 pm ET and Orbital's Cygnus spacecraft will arrive at the ISS on November 2, Orbital said today.
House Science, Space and Technology Committee Chairman Lamar Smith (R-TX) said in a letter to NASA Administrator Charlie Bolden that his committee continues to work with the Senate "to develop a NASA Authorization bill this year." In that regard, he has a number of questions about whether NASA is complying with existing law to ensure Orion will be able to ferry crews to and from the International Space Station (ISS).
The October 7, 2014 letter, also signed by Space Subcommittee Chairman Steve Palazzo (R-MS), focuses on the requirement in the 2010 NASA Authorization Act that Orion be designed to serve as a backup to the commercial crew program for ISS missions in addition to its primary role as a spacecraft to take crews beyond low Earth orbit. Some of the questions are aimed at whether NASA is, indeed, ensuring that Orion will meet that "minimum capability requirement" as required by law, while others ask why two commercial crew competitors are required when Orion can be the "alternative" spacecraft should a commercial vehicle encounter problems.
"If Orion could provide a redundant capability as a fallback for the commercial crew program partners, why is it necessary to carry two partners to ensure competition in a constrained budget environment?", the letter asks. Some Members of Congress have long questioned why NASA insists on funding more than one commercial crew partner, a disagreement that is at least in part responsible for Congress providing less funding than the President requests for commercial crew year after year.
Congress has made clear that it considers Orion and the Space Launch System (SLS) to have higher priority than commercial crew. The House passed the appropriations bill that includes NASA on May 30 and the Senate Appropriations Committee approved its version on June 5. The House and the Senate committee would both increase funding for Orion and SLS in FY2015 while providing less than requested for commercial crew (though closer to the request than in prior years). Congress has not yet completed action on FY2015 appropriations, however, and NASA is operating under a Continuing Resolution (CR) roughly at its FY2014 funding level. The letter asks Bolden which funding level the Orion program is currently using as guidance -- the FY2015 request, the CR, the House-passed bill, or the amount recommended by the Senate committee -- and whether that affects the agency's ability to ensure that Orion can meet the minimum capability requirement.
Smith and Palazzo request that NASA answer those and several related questions by October 21 as they work with their Senate counterparts on a new NASA authorization bill.
The 2010 NASA Authorization Act is the most recent NASA authorization. Its funding recommendations covered only through FY2013, but the other provisions remain law. The House passed a 2014 NASA Authorization Act this summer, but the Senate has not acted on its version this year although action had been expected just before Congress recessed in September.
The Smith-Palazzo letter signals that work continues with the hope of the two chambers agreeing on a new bill this year. That may be a challenge -- though not necessarily an insurmountable one -- since there will be few legislative days remaining in the 113th Congress when it returns on November 12. Any bill that does not pass by the end of this Congress will die and new legislation will have to be introduced in the 114th Congress, which begins in January.
NOTE: As of 5:00 pm EDT October 15, the Air Force has not made any announcement that the X-37B landed. The original announcement that it was returning to Earth said the exact landing date and time were dependent on technical and weather considerations. Unofficial observers monitoring FAA's NOTAMs (Notices to Airmen) and using amateur observations of its orbit can offer possible landing times, but they are subject to uncertainty. Reuters reporter Irene Klotz (@Free_Space) tweeted today that the landing "now looks like no earlier than Thursday, FAA pilot advisory indicates." Bob Christy at zarya.info calculates there is a landing opportunity that day (tomorrow) about 16:25 GMT (12:25 EDT). This article has been updated to reflect the delay from the anticipated landing date of October 14.
UPDATED, October 15, 2014: The Air Force announced on Friday (October 10) that its secretive X-37B spaceplane, in orbit for almost two years, will soon return to Earth and land at Vandenberg Air Force Base, CA. At the recent International Astronautical Congress (IAC2014) in Toronto, Victoria Samson of the Secure World Foundation encouraged the U.S. government to be more open about what the X-37 is doing as part of the Transparency and Confidence Building Measures (TCBMs) the United States is advocating to help ensure space sustainability.
Officially called the X-37B Orbital Test Vehicle (OTV), the vehicle resembles a very small space shuttle. The Air Force launches the robotic spacecraft for lengthy on-orbit classified missions. This flight is the longest to date. Launched on December 11, 2012, its mission duration will be more than 667 days. There are at least two OTVs. The first, OTV-1, made a 224 day flight in 2010. The second, OTV-2, made a 469 day flight from March 2011 to June 2012. The OTVs are reusable and this is the second flight for OTV-1.
Photo of X-37B OTV-1. Photo credit: Boeing (via Spaceflightnow.com)
The Air Force statement said the exact time of the landing "will depend on technical and weather considerations." Initial indications were that landing was targeted for October 14, but that day passed with no announcement from the Air Force. Unofficial observers are estimating potential landing times based on the FAA's NOTAMs (Notices to Airmen) and amateur observations of the X-37's orbit, but they are subject to uncertainty. Check back here for updated information when it is available.
The classified nature of the missions prompts much speculation about what they are doing. In an era when the United States and other countries are advocating for establishing TCBMs to help ensure space sustainability, some question why the missions are kept secret. In an October 1 session at IAC2014 on "Assuring a Safe, Secure and Sustainable Space Environment for Space Activities," the Secure World Foundation's (SWF's) Samson cited the X-37B's secrecy as at odds with TCBMs. TCBMs are norms of behavior that "nations that mean no harm" should follow, she said, including a willingness to share information about technical capabilities in order to avoid misperceptions. She remarked that the U.S. "refusal to explain what the X-37B is [doing] has led a lot of people to assume the worst, and probably wrongfully so."
A 2010 SWF analysis concluded it "has near zero feasibility as an orbital weapons system for attacking targets on the ground" and has "limited capability for orbital inspection, repair and retrieval," although speculation often centers on exactly such missions. SWF concluded its most likely purpose is "flight testing new reusable space launch vehicle (SLV) technologies ... and on-orbit testing of new sensor technologies and satellite hardware primarily for space-based remote sensing."
The OTVs are launched from Cape Canaveral Air Force Station, FL, adjacent to NASA's Kennedy Space Center (KSC). NASA and the Air Force announced last week that the Air Force will use two of KSC's Orbiter Processing Facilities (OPFs) to process the X-37B in the future. To date the OTVs have landed across the country at Vandenberg, but the NASA-Air Force announcement also said that tests were conducted to demonstrate the X-37B could land at KSC's Shuttle Landing Facility. The landing facility and the OPFs are left over from NASA's space shuttle program, which was terminated in 2011.
The X-37, built by Boeing, initially was a NASA test vehicle designed to lead to an Orbital Space Plane that could serve as a Crew Return Vehicle to bring International Space Station astronauts back to Earth in an emergency and, eventually, as a taxi to take them to the ISS as well. NASA terminated that program in 2004 after President George W. Bush reoriented the human spaceflight program toward returning astronauts to the Moon instead of ISS utilization. The X-37 program then was transferred to the Department of Defense.