Dismissal Denied, SpaceX Lawsuit Against ULA Block Buy Goes On

On April 28, 2014, SpaceX filed a lawsuit in the United States Court of Federal Claims seeking to block the USAF “block buy” of 36 rocket cores from the EELV program’s sole source provider United Launch Alliance. After a series of legal maneuvers which included a temporary injunction, soon dismissed, against further purchases of Russian made RD-180 main engines for the Atlas V, Federal judge Susan G. Braden ordered the two sides to enter into mediation. Not unexpectedly, Braden’s demand came with a gag order. Consequently, even as both sides have seen their boosters roar off the nation’s launch pads in an unbroken stream of success, the case which will decide the short term future of the US launch industry generated little but silence for the remainder of the year. That is now changing.

On January 6th, the Air Force stated that it was pushing back the expected certification date until mid 2015, adding a day later that SpaceX “is making substantial progress” in its quest to be considered for competition for new EELV contracts, going on to say the company had met 80 percent of the criteria agreed upon by both parties.

While encouraging in some ways, the delay threatens to make ULA the default winner of at least one impending launch order, for which the Falcon 9 V1.1 is physically capable of performing, and others could clearly follow. From the SpaceX perspective, as indicated in a Bloomberg interview with founder Elon Musk released on Tuesday, January 13, the drawn out certification process appears to be a case of intentional slow walking by the Air Force.  It is a position which may have been bolstered by a recently announced independent review of the certification process. The review will not be completed until mid year as well.

In the meantime, Reuters reports that SpaceX has won a small victory in the form of a denial to dismiss ruling issued by Judge Braden on Tuesday, while two other motions are awaiting the outcome of mediation which will not begin until later this month. Also encouraging, a rare bit of news from the proceedings themselves came out in the Bloomberg interview when Musk relays that at one point Braden reminded the defense that they were supposed to be working on behalf of the United States, and not United Launch Alliance.

All of this takes places against the backdrop of a steadily growing record of launch success for SpaceX. To date, the company has amassed 14 consecutive launches for the Falcon 9 family, with 9 launches of the Falcon 9 V1.1, including 4 communications satellites to Geostationary Transfer Orbit.  From that standpoint, the company has equaled or surpassed the demands placed on either Boeing or Lockheed Martin when they were entering the EELV program with the Delta IV and Atlas respectively, even as SpaceX drew to a tie in new launch orders with Arianespace in 2014.

At the same time, a seemingly endless series of launch delays and last minute scrubs over the last year have created the perception of a highly capable, but somewhat finicky booster which has yet to have all the kinks worked out, even as the diagnostic system makes sure that when it does launch, the Falcon 9 is up to the task. While descriptions of the certification process suggest the Air Force is not necessarily counting launch delays against SpaceX, and could in fact find some measure of comfort in the obviously robust fault monitoring system, there is also little doubt that it is the sole issue standing in the way of what could be an undeniable argument on behalf of Elon Musk’s company.

That argument could be underscored in a major way if, as Musk believes, SpaceX is successful in landing the Falcon 9 first stage on its next attempt. After Saturday’s very near miss as part of the CRS-5 launch to ISS, Musk told Bloomberg that the effort would have succeeded with only a few more seconds of grid fin control available. In other words, SpaceX may very well be a few gallons of hydraulic fluid away from creating an inflection point in aerospace history which will transform the launch industry, including military launch, forever.

In the most immediate sense, SpaceX would be able to offer a new form of mission assurance in the form of forensic post flight analysis of the sort which cannot be approached with expendable launch vehicles. That it would take place even as NASA is gleefully preparing to throw away the only other engines in the world (SSME’s on SLS) which have undergone the same, speaks volumes about the difference between “New” and “Old” space.

For the EELV program, and the military approach to acquiring launch vehicles however, the advent of reusability threatens to finally undermine the increasing questionable assertion that every launch must be treated as a unique event with reams and reams of analysis conducted by the Aerospace Corporation and which can only be trusted to an entrenched monopoly provider with wildly uncompetitive prices.

While the Department of Defense is not going to begin selecting launch providers as causally as one might choose between airlines on Kayak or Travelocity, the first meaningful step on the road to recovering and relaunching rockets is also likely to be a wrecking ball into the foundations of an industrial and defense bureaucracy which has somehow succeeded in making the acquisition of launch services a 70 billion dollar undertaking which is the fourth largest program in the defense budget, even as SpaceX is driving launch costs lower.

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