Lunar Resources, Inc.

The procurement

NASA's Tipping Point announcement for partnership proposals (AFPP) No. 80HQTR22SOA02 sought proposals to advance commercial space technologies in two areas: cislunar/lunar surface infrastructure and in-space infrastructure. It anticipated Funded Space Act Agreements of one to four years, with approximately $150-200 million in total funding for all selections, and said the evaluation would not follow the FAR or the NASA FAR Supplement because the announcement would not result in a contract. NASA selected 11 firms, including Blue Origin, LLC.

The protest

Lunar Resources (LRI), which was not selected, argued that Blue Origin was not entitled to award because its proposal contained fraudulent representations. It first raised the allegation with NASA, asking the agency to rescind Blue Origin's award or withhold its funding until NASA investigated. When the agreements officer found no basis for further action, LRI filed an identical protest at GAO.

The agency’s answer

NASA asked GAO to dismiss. It argued that it awarded the Funded Space Act Agreement to Blue Origin under its other transaction authority in the Space Act, not through a competition under the FAR, so GAO lacked jurisdiction to consider the protest.

What decided it

An OT agreement isn't a procurement contract, and LRI didn't claim NASA misused its OTA to avoid using one.

GAO dismissed for lack of jurisdiction. Its bid protest authority under CICA covers the award of contracts for the procurement of goods and services, and agreements an agency issues under its other transaction authority are not procurement contracts. The exception is a timely, pre-award protest alleging the agency is improperly using its OTA to avoid a procurement contract. LRI's challenge was confined to the evaluation of Blue Origin's proposal and the award, so it fell outside the exception.