Sierra Nevada Files Suit to Reinstate Stop-Work Order on CCtCAP

Sierra Nevada Corporation (SNC) filed a lawsuit in the U.S. Court of Federal Claims yesterday asking the court essentially to overturn NASA’s decision to allow work to proceed under the Commercial Crew Transportation Capability (CCtCAP) contracts.  SNC is protesting NASA’s award of those contracts to Boeing and SpaceX and ordinarily work would stop until the protest was resolved.  NASA initially told the companies to stop work, but rescinded that order about a week later, triggering SNC’s lawsuit.  A hearing on SNC’s suit is scheduled for tomorrow morning (Friday, October 17).

Sierra Nevada, Boeing and SpaceX are all being funded under the current phase of NASA’s commercial crew program — Commercial Crew Integrated Capability (CCiCAP).   Those three companies, at least, bid for the CCtCAP phase which will lead to operational commercial crew systems to take astronauts to and from the International Space Station.   NASA selected Boeing and SpaceX for CCtCAP on September 16.

On September 26, SNC filed a protest with the Government Accountability Office (GAO) because it found “serious questions and inconsistencies in the source selection process.”  GAO has 100 days (until January 5, 2015) to rule on the protest.

NASA issued a stop-work order to Boeing and SpaceX because of the protest.  The stop-work order affects only the CCtCAP contracts, not work under the CCiCAP agreements. 

However, on October 9, NASA rescinded the stop-work order, overriding provisions of the Competition in Contracting Act (CICA) on the basis that it was acting within statutory authority to avoid significant adverse consequences.

In filing its lawsuit in the U.S. Court of Federal Claims, SNC asserts that NASA’s override decision was “illegal and void” because the government failed to establish that “performance of the contract is in the best interest of the United States” or “urgent and compelling circumstance that significantly affect the interests of the United States will not permit waiting” for the GAO decision.  SNC calls NASA’s override decision “arbitrary and capricious, an abuse of discretion and … contrary to law, all in violation of the Administrative Procedures Act….”

SNC asks the court to declare NASA’s override “illegal and void” or alternatively to “preliminarily enjoin the Defendant from further implementing” the override — in other words, to reinstate the stop-work order — until the court issues a final judgment on the matter.

Because SNC’s filing to the court relies on material subject to a GAO protective order (because of its bid protest to GAO) and on other material that may contain proprietary information, SNC further requests the court to keep the primary documents it filed with the court (memorandum and appendix) under seal.   For now, at least, only a few of SNC’s documents are available to the public through the court’s PACER electronic system: Plaintiff’s Motion for Leave to File Documents Under Seal and Motion for a Protective Order, Motion for Declaratory and Injunctive Relief, and Plaintiff’s Applications for a Temporary Restraining Order to Prevent Unlawful Override of CICA Stay.

The court has scheduled a hearing on the case, Sierra Nevada Corporation v United States, before Judge Marian Blank Horn for 10:00 am ET tomorrow, October 17.