A 47-page opinion from Judge Richard A. Hertling describes why Blue Origin’s lawsuit against NASA’s Moon lander award to SpaceX was dismissed.
A public version of Hertling’s November 4 ruling was released by the Court of Federal Claims last week. The November 18 opinion details the court’s frustration with the Blue Origin lawsuit and laments the company’s speculative defense of their actions.
“Blue Origin is in the position of every disappointed bidder: Oh. That’s what the agency wanted and liked best? If we had known, we would have instead submitted a proposal that resembled the successful offer, but we could have offered a better price and snazzier features and options,” wrote Hertling. “Blue Origin cannot use its speculative alternative proposal to establish that it would have had a substantial chance of award but for NASA’s alleged evaluation errors.”
The opinion also revealed that following a July offer from Blue Origin founder Jeff Bezos that offered NASA a $2 billion price reduction in order to secure a contract, CEO Bob Smith upped the offer to more than $3 billion in private. This increase wiped out the difference between its original bid and SpaceX’s $2.9 billion price. Knowledge of this offer, however, only added to Hertling’s frustration.
“Faced with this explicit direction, Blue Origin chose to submit a proposal that did not include a $2 or $3 billion corporate contribution,” he wrote. “Blue Origin’s effort to conduct public-relations negotiations after the award in the context of its bid protest is insufficient to support a finding of prejudice.”
The most damning portion of the opinion, however, contested that even if the award to SpaceX had been improper, Blue Origin had not shown that their bid would have been successful.
“Considering the funding shortfall, even if the Court found that either NASA’s evaluation of SpaceX was improper or SpaceX’s proposal was unawardable, Blue Origin cannot show that it would be in a position for award.”
Following the November 4 judgment, SpaceX and NASA were allowed to continue work on the Human Landing System program. This brings an end to a seven-month delay caused by the Blue Origin litigation, a delay that has already had a severe impact on the timetable to return American astronauts to the surface of the Moon.