Updated with Orbital ATK, DARPA statements on court ruling
PARIS — A U.S. District Court dismissed Orbital ATK’s lawsuit against a U.S. government effort to develop an in-orbit robotic servicing vehicle with contractor Space Systems/Loral (SSL), saying the court has no standing to challenge an agency program.
In its July 12 decision, the U.S. District Court for the Eastern District of Virginia suggested that Orbital’s basic argument — that U.S. policy encourages government agencies to turn to the private sector for technology rather than develop competing technology — had merit.
The problem for Orbital, the court concluded, is that it sought to cancel an entire U.S. Defense Advanced Research Projects Agency (DARPA) program and not a specific element of it.
DARPA’s Robotic Servicing of Geosynchronous Satellites (RSGS) program is designed to offer in-orbit satellite maintenance and repair in geostationary orbit, the operational home of most telecommunications satellites.
DARPA awarded an RSGS contract to SSL in February 2017 after a competitive bidding process in which Orbital did not participate as a bidder, but rather as a kind of informal protester asking DARPA to change the program. DARPA considers that Orbital’s response was in fact a non-compliant bid.
Distinguishing between policy and law
The company told DARPA that RSGS runs counter to U.S. National Space Policy as outlined by then-President Barack Obama in 2010, and specifically the “Commercial Space Guidelines” section, which says in part:
“To promote a robust domestic commercial space industry, departments and agencies shall:
— Purchase and use commercial space capabilities and services to the maximum practical extent when such capabilities and services are available in the marketplace and meet United States Government requirements;
— Modify commercial space capabilities and services to meet government requirements when existing commercial capabilities and services do not fully meet these requirements and the potential modification represents a more cost-effective and timely acquisition approach for the government;
— Develop governmental space systems only when it is in the national interest and there is no suitable, cost-effective U.S. commercial or, as appropriate, foreign commercial service or system that is or will be available;
— Refrain from conducting United States Government space activities that preclude, discourage, or compete with U.S. commercial space activities, unless required by national security or public safety;
— Ensure that United States Government space technology and infrastructure are made available for commercial use on a reimbursable, noninterference, and equitable basis to the maximum practical extent.”
DARPA’s RSGS is a multi-part program including partnerships with industry and others, including the U.S. Naval Research Laboratory and Western Michigan University. Its goal is to develop an RSGS payload, with industry providing the satellite bus that would support the instruments.
Several companies won contracts in the first phase of RSGS, including Orbital, which is developing circuit boards.
The subsequent phases of RSGS call for the private-sector partner to integrate the payload onto the platform, which would then be launched. DARPA and its industry partner, SSL, will conduct DARPA-specified maneuvers in orbit to prove the spacecraft’s functionalities.
In the final phase of the contract — and the one that most upset Orbital — DARPA plans to transfer ownership of the spacecraft to SSL, which will then be free to sell in-orbit-servicing missions to U.S. government and commercial customers.
Orbital, as part of the portfolio it acquired with its purchase of ATK, has been working on a Mission Extension Vehicle (MEV) for several years. The company believes that delivering fuel to aging but otherwise healthy satellites in orbit is the only near-term servicing business that is worth private-sector investment.
Orbital’s Space Logistics LLC has won a contract from commercial fleet operator Intelsat for a servicing mission in geostationary orbit in 2018. Orbital has contracted with International Launch Services (ILS), for a Proton rocket launch for the mission.
Orbital said RSGS constituted unfair competition for MEV by allowing SSL exclusive ownership of a vehicle built with government funds. The company asked DARPA to change the contract to eliminate the transfer to the private sector, and to limit the program’s Robotic Servicing Vehicle service to only government satellites.
Orbital refuses to bid, sort of
DARPA rejected Orbital’s counter proposal and Orbital did not bid for the RSGS contract, apparently preferring to stand on the principle that it violated the National Space Policy.
The company asked the court to declare DARPA’s entire RSGS in violation of the National Space Policy and to order it cancelled. The court decision suggests that this was a fatal error in Orbital’s approach.
Orbital’s reasoning required the court to determine that the National Space Policy, which is in the form of a Presidential Decision Directive, is equivalent to a law, allowing RSGS to be challenged under the U.S. Administrative Procedure Act.
Orbital’s complaint, the court said, “does not simply challenge one element of DARPA’s action [but] explicitly challenges DARPA’s development of technology the plaintiffs claim it should purchase from the commercial sector.”
The court concluded it does not have jurisdiction to intervene in government agency programs in this way, and that even a more-targeted Orbital argument — one that challenged the SSL contract’s details — would need a court to equate the National Space Policy with law.
This too the court rejected, concluding:
“In the context of the [Administrative Procedure Act], the word ‘law’ refers to lawmaking authority under Article 1 of the [U.S.] Constitution, not a president’s executive authority under Article 2, which admittedly can have legal effect.
“Upon reviewing the National Space Policy… the inescapable conclusion is that it represents a series of internal management directives and does not have the force of law.
“[A]lthough every president since Dwight Eisenhower has issued a National Space Policy directive… [Orbital] cannot point to a single case where one of these policies was actually found to have the force of law.”
SSL has since won a contract from fleet operator SES for a satellite in-orbit refueling mission around 2020.
Orbital vows to continue the fight in Washington
In a July 13 statement, Orbital ATK said:
“Orbital ATK will redouble its efforts to fight for fair competition in the satellite servicing arena.
The Court did not rule on the merits of the RSGS program, but said that the U.S. National Space Policy does not have the force of law. This effectively returns the issue to the Executive branch and Congress for resolution.
“The Court acknowledged that the National Space Policy contains “management directives” and “guidance” to “encourage the purchase and use of U.S. commercial space services,” and the Court reaffirmed “the President’s policy-making role directing the operations of the United States’ space-oriented agencies.”
“We will continue in our efforts to work with the Administration, DoD and Congress to uphold the principles of the National Space Policy and of good government. DARPA’s RSGS arrangement uses U.S. taxpayer dollars to subsidize a single, Canadian-owned company, whose primary financial beneficiaries are Canadian institutions. We intend to work with those in the Administration, DoD and Congress who believe in fair competition and would never want U.S. taxpayer dollars to favor one company over others.
“We remain committed to our anchor customer and to our own in-space satellite servicing program, which is financed with our own capital, and which is scheduled for launch next year, well ahead of the DARPA schedule.”
DARPA, in a July 13 statement, said:
“DARPA appreciates the court’s careful consideration of this case and is gratified by the judge’s decision. We look forward to continuing our collaboration with public and private entities in pursuit of our ambitious goal of robotic satellite servicing on orbit.”