Jeff Bezos’ space company Blue Origin brought its fight against NASA’s Moon program to federal court, doubling down on accusations that the agency wrongly evaluated its lunar lander proposal. The complaint escalates a monthslong crusade by the company to win a chunk of lunar lander funds that was only given to its rival, Elon Musk’s SpaceX, and comes weeks after Blue Origin’s first protest over the Moon program was squashed by a federal watchdog agency. Now in court, Blue Origin’s challenge could trigger another pause to SpaceX’s contract and a new lengthy delay to NASA’s race to land astronauts on the Moon by 2024.
Blue Origin’s complaint, filed with the US Court of Federal Claims last Friday, was shrouded behind a protective order but was described as a challenge to “NASA’s unlawful and improper evaluation of proposals” submitted during the Moon competition, lawyers for Blue Origin said in a separate filing.
Blue Origin was one of three firms vying for a contract to land NASA’s first astronauts on the Moon since 1972. In April, NASA shelved the company’s $5.9 billion proposal of its Blue Moon landing system and went with SpaceX’s $2.9 billion Starship proposal instead, opting to pick just one company for the project after saying it might pick two. The contract involves two lunar landings — one test landing without humans, and another with humans — and SpaceX has already received $439 million from NASA to start its work, according to federal data.
A spokesperson for Blue Origin called the lawsuit “an attempt to remedy the flaws in the acquisition process found in NASA’s Human Landing System,” adding: “We firmly believe that the issues identified in this procurement and its outcomes must be addressed to restore fairness, create competition, and ensure a safe return to the Moon for America.”
NASA officials are “currently reviewing details of the case,” agency spokeswoman Monica Witt said of Blue Origin’s lawsuit. Asked how the lawsuit and a possible court order to pause work on SpaceX’s contract could impact the Artemis program, Witt said “as soon as possible, the agency will provide an update on the way forward for returning to the Moon as quickly and as safely as possible under Artemis.”
NASA’s decision to pick only SpaceX came as a surprise after it previously indicated it would pick “up to two companies” and follow precedent from its Commercial Crew Program, where SpaceX and Boeing have built separate spacecraft to act as redundancies in case one company falls behind. That strategy has proved useful as Boeing — whose Starliner capsule is seemingly cursed by technical issues — is nearly two years behind SpaceX. But with its Artemis Moon program, NASA says it was forced to pick only one company to build its first human lunar lander since 1972 because Congress funded roughly a quarter of what NASA requested for the program.
“After accounting for a contract award to SpaceX, the amount of remaining available funding is so insubstantial that, in my opinion, NASA cannot reasonably ask Blue Origin to lower its price for” its Blue Moon proposal, NASA’s human spaceflight chief Kathy Lueders wrote in a document justifying the agency’s decision to go with SpaceX. “I do not have enough funding to even attempt to negotiate a price from Blue Origin that could potentially enable a contract award.”
Still, Blue Origin filed a protest with the Government Accountability Office (GAO) in April, less than two weeks after SpaceX’s award was announced, arguing NASA should’ve canceled or changed the terms of the program when it learned it wouldn’t have had enough money to fund two separate contracts. It also alleged NASA unfairly negotiated the terms of SpaceX’s proposal before making the award, without giving the same opportunities to Blue Origin and Dynetics. The GAO rejected those arguments in late July and deemed NASA’s decision fair and lawful.
That protest prevented SpaceX from starting its contract for 95 days while the GAO adjudicated the case. Now in federal claims court, Blue Origin’s latest challenge could trigger another delay. The company alerted the court last week of its impending lawsuit and signaled to the judge that it will seek an order to pause SpaceX’s contract while the case is adjudicated, according to a person familiar with the notice who’s not authorized to speak publicly about litigation. If the judge grants Blue Origin’s request, the pause to SpaceX’s contract could potentially last even longer and put another dent in the timeline of NASA’s Artemis program.
Blue Origin pitched its Blue Moon lunar lander with a “National Team” of established aerospace contractors that included Northrop Grumman and Lockheed Martin, signaling that the technical expertise from those companies would fill in for Blue Origin’s limited spaceflight experience. The company has launched and landed its reusable suborbital space tourism rocket New Shepard roughly 16 times, with its first crewed flight taking place in July with Bezos and three others aboard. Engineering lessons from New Shepard will help guide Blue Origin’s approach for its lunar landing segment of Blue Moon, Bezos has said.
After losing its GAO protest, Blue Origin waved its frustration out in the open through statements and snarky white papers dangling the prospect of another legal fight in court and attacking SpaceX’s Starship system as inefficient. “We stand firm in our belief that there were fundamental issues with NASA’s decision,” the company said in a statement after the GAO ruling, “but the GAO wasn’t able to address them due to their limited jurisdiction.” In one infographic posted on its website, Blue Origin targeted SpaceX’s Starship system directly, saying “there are an unprecedented number of technologies, developments, and operations that have never been done before for Starship to land on the Moon.” One critique cast SpaceX’s proposal as overly complex, noting it would take 16 separate Starship launches for each Moon landing.
Blue Origin's next attack targets SpaceX's Starship system, which NASA picked over Blue's Blue Moon lunar lander.— Joey Roulette (@joroulette) August 4, 2021
"There are an unprecedented number of technologies, developments, and operations that have never been done before for Starship to land on the Moon," company says. pic.twitter.com/v3qMyhRdYd
SpaceX’s rocket system, as proposed to NASA, would require several launches of a fuel tanker version of Starship that would, through some proprietary fueling depot floating in Earth orbit, supply fuel to a lunar lander version of Starship before trekking to the Moon’s surface, according to the GAO. Musk defended this approach in responses to Blue Origin’s critiques on Twitter, saying “16 flights is extremely unlikely” and that a “max of 8” launches would be required for one Starship lunar landing.
“However, even if it were 16 flights with docking, this is not a problem. SpaceX did more than 16 orbital flights in first half of 2021 & has docked with Station (much harder than docking with our own ship) over 20 times.” Then, in another tweet, he threw in some snark at Blue Origin: “The sad thing is that even if Santa Claus suddenly made their hardware real for free, the first thing you’d want to do is cancel it.”
A lawsuit against NASA may seem like a natural next step in Blue Origin’s campaign to discredit SpaceX’s Starship proposal and pry a portion of lunar lander funds from the agency for itself. But the formal complaints stand in stark contrast to comments once made by Bezos, the company’s founder.
At a fireside talk in 2019, Bezos specifically bemoaned bid protests and lawsuits as barriers to progress in NASA’s lunar efforts, comparing bureaucratic-heavy government contracting of today with the speedier, more streamlined contracting culture that enabled the Apollo Moon landings in the ‘60s and ‘70s. “Today, there would be three protests, and the losers would sue the federal government because they didn’t win,” Bezos said.
“The thing that slows things down is procurement. It’s become the bigger bottleneck than the technology,” he added. “Which I know for a fact, for all the well-meaning people at NASA, is frustrating.”
Update, Monday 5:30PM ET: Adds statement from NASA