Commercial Crew - Discussion Thread 1

[baldusi]

All fine and good... but that doesn’t alter the complaint...

If I understood it right, it actually increases the contract contingencies, right?

[Rocket Science]

All fine and good... but that doesn’t alter the complaint...

If I understood it right, it actually increases the contract contingencies, right?

I’m not sure... There may be a mechanism in place to continue work but not the full award. We need to hear from some lawyers here of NSF...

[erioladastra]

Perhaps...
A) NASA found a loop hole that allows them to keep working, or
B) The SNC protest has been pulled or denied early?

Neither as I stated earlier.  NASA reviewed the objection and felt the impact and likelihood of their decision being over turned was low.  Now SNC will probably request an injunction, which likely won't do anything though there is always a chance.  If granted then all work would stop until the GAO review is completed by January.

[WindyCity]

Now SNC will probably request an injunction, which likely won't do anything though there is always a chance.  If granted then all work would stop until the GAO review is completed by January.

Given NASA's justification for lifting the stop-work order, any move by SNC to request an injunction might appear unpatriotic, putting the company's interests ahead of the nation's. Whether that's true or not wouldn't matter. It's what NASA claims is the case.

[joek]

An agency may override the automatic stay initiated by a GAO protest by issuing a determination that there are compelling reasons not to wait for completion of the GAO process before allowing contract award or work to proceed.

That is an agency administrative action and no court is involved.  The GAO has no authority to reverse or otherwise prevent an agency override.  The only entity which can reverse an agency override is a Federal Claims Court.

In short, NASA could at any time effectively ignore the GAO (for the moment) and allow work to proceed under CCtCap by issuing an override.

Is this what just happened?

Yes, that is exactly what happened.  Suprising move IMHO.  Key words and phrases "compelled" and "best serves the United States":

... These considerations compelled NASA to use its statutory authority to avoid significant adverse consequences where contract performance remained suspended. NASA has determined that it best serves the United States to continue performance of the CCtCap contracts ...

SNC could at this point file a petition with a Federal Claims Court to reinstate the stay and stop work under CCtCap.  NASA must be fairly confident that either: (a) SNC's protest will be denied (insufficient reason in and of itself); or (b) if SNC's protest is upheld, that proceeding in the interim will get them further-faster even if they have to clean up after-the-fact.

[MP99]

If CCtCap only pays on completion of milestones, I don't see any danger that anyone will earn a milestone payment during the protest period. (Or, can someone correct me on that?)

Any risk would therefore seem to be carried by the contractors, in that they would do work that wouldn't be recompensed if they become excluded?

Cheers, Martin

[joek]

Perhaps...
A) NASA found a loop hole that allows them to keep working, or
B) The SNC protest has been pulled or denied early?

Neither as I stated earlier.  NASA reviewed the objection and felt the impact and likelihood of their decision being over turned was low.  Now SNC will probably request an injunction, which likely won't do anything though there is always a chance.  If granted then all work would stop until the GAO review is completed by January.

Sort of.  The basis and finding for such a decision cannot be NASA's judgment of the merits or the probability of a GAO decision will go one way or another--that would make a mockery of the entire process.  NASA's basis and finding must be that of a compelling need to proceed with work under CCtCap regardless of what NASA feels are the merits of the protest  or of what NASA feels will be the GAO's ultimate decision.

In other words, NASA cannot simply state "we think the merits of the protest or the probability of GAO upholding the protest are low, so we are going to proceed".  NASA must find and attest that "regardless of the merits of the protest and the GAO's final ruling, there are compelling reasons to proceed".

[joek]

If CCtCap only pays on completion of milestones, I don't see any danger that anyone will earn a milestone payment during the protest period. (Or, can someone correct me on that?)

There may be interim progress or financing payments between milestones.  We don't know if there are, as those would be in the CCtCap contract details which are not public.  Also, actions by contractors or by NASA which may incur US government liabilities under CCtCap also count, even if no immediate payments are involved.

[QuantumG]

I wonder if they'll release the source selection document or list the milestones, or whether the first we'll see of that is the GAO response.

[clongton]

I wonder if they'll release the source selection document or list the milestones, ...

That is not typically done until the protest has run its course.

[newpylong]

SNC doesn't have a leg to stand on and NASA knows it. If transport availability doesn't happen in 2017 (NASA) will be fried. I think they made a calculated decision.

[clongton]

SNC doesn't t have a leg to stand on and they know it.

No they do not know that! Did Mark tell you that? The people at SNC are high-integrity people and would not stoop to the kind of thing you are suggesting. They took this action because they DO believe they "have a leg to stand on". Whether the GAO concurs or not is yet to be determined.

[newpylong]

Ammended because I didn't mean SNC.

[Roy_H]

I expect the return to work risk by NASA is minimal. If the GAO overturns the contract, then in worst case NASA will be out only 1 milestone payment.

[MP99]

I expect the return to work risk by NASA is minimal. If the GAO overturns the contract, then in worst case NASA will be out only 1 milestone payment.

And some internal resource supporting the participants.

Cheers, Martin

[Todd Martin]

I do not see why SNC would want to file an injunction in Federal Court to stay the work being done by Boeing & SpaceX while the GAO protest is being considered.  SNC is not being harmed by this interim work.  If SNC lands a CCtCAP contract as a result of their protest, they could still get every penny they asked for.

Even if there was a minor harm to SNC by the resume work order, there is still a corresponding benefit in that SNC is no longer considered by some as obstructing progress in US manned spaceflight.

It is NASA that is taking the financial risk in issuing a resume work order and that decision must have been balanced by the certain financial & schedule loss in a 100 day delay. 

As a SNC supporter, I am glad NASA chose to issue the resume work order.  It solves a number of problems while allowing the GAO protest process to continue.   

[Prober]

GAME ON indeed - they basically played the 'national interest' card.  Tough one to counter.

nothing played

Bolden's announcement performance, and now this NASA action speak volumes.

Not even waiting until the election. 

[AncientU]

It is NASA that is taking the financial risk in issuing a resume work order and that decision must have been balanced by the certain financial & schedule loss in a 100 day delay. 

SpaceX still had time on their meter from CCiCAP, so their critical path work would likely not be impacted by anything like 100 days.  Since they are on a timeline that is ahead of Boeing by a couple years, NASA's 'national interest' argument in replacing the Russian taxi service is somewhat hollow, except in the case SpaceX fails badly (and Boeing overachieves).

On the other hand, Boeing was ready to lay off 200 plus workers if they didn't get selected/funded -- they are the ones with financial and schedule risk if NASA doesn't resume work.  (With the original announcement delays and this extra protest delay, this could have summed to tens of millions.) 

Wouldn't be too surprising if Boeing weighed in and forced NASA's hand.

[SWGlassPit]

Even with SpaceX still having uncompleted CCiCap milestones, a stop-work order would still put a delay in the works, as they would not be able to do any work that would have been funded by a CCtCap milestone.  With the "back to work" order, the CCiCap and CCtCap milestones can be worked in parallel.

[AncientU]

Even with SpaceX still having uncompleted CCiCap milestones, a stop-work order would still put a delay in the works, as they would not be able to do any work that would have been funded by a CCtCap milestone.  With the "back to work" order, the CCiCap and CCtCap milestones can be worked in parallel.

Having NASA involved witnessing work or reviewing anything would be delayed for sure.  I would suspect that there is work that could continue at risk toward a CCtCAP milestone during the stop work and still get credited fully when the applicable milestone is achieved after the stop work was lifted. The risk would be that they wouldn't get reimbursed if they were de-selected, but SpaceX has stated that they'd go ahead -- at a slower pace -- without NASA funding. 

The 100 day delay of the protest wouldn't translate one-for-one into SpaceX schedule impact is all I'm speculating.