Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 1 of 22
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`In the United States Court of Federal Claims
`
`BID PROTEST
`No. 19-742C
`Filed Under Seal: August 26, 2019
`Reissued: August 28, 2019*
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`Plaintiff,
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`
`
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`SPACE EXPLORATION
`TECHNOLOGIES CORP.,
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`
`
`v.
`
`THE UNITED STATES,
`
`
`
`v.
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`BLUE ORIGIN, LLC, et al.,
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` Defendant-Intervenors.
`
`Defendant,
`
`
`
`
`
`Post-Award Bid Protest; Motion to
`Dismiss; Rule 12(b)(1); Other
`Transactions; 10 U.S.C. §§ 2371 and
`2371b.
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`)
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`Craig A. Holman, Attorney of Record, Kara L. Daniels, David M. Hibey, Sonia Tabriz,
`Nathaniel E. Castellano, Of Counsel, Arnold & Porter Kaye Scholer LLP, Washington, DC, for
`plaintiff.
`
`Tanya B. Koenig, Trial Attorney, Douglas Edelschick, Of Counsel, Douglas K. Mickle,
`Assistant Director, Robert E. Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney
`General, Commercial Litigation Branch, Civil Division, United States Department of Justice,
`Washington, DC; Erika Whelan Retta, Air Force Legal Operations Agency; Gregory Yokas,
`Space and Missile Systems Center, Office of the Staff Judge Advocate, for defendant.
`
`
`
`* This Memorandum Opinion and Order was originally filed under seal on August 26, 2019 (docket entry
`no. 75). The parties were given an opportunity to advise the Court of their views with respect to what
`information, if any, should be redacted from the Memorandum Opinion and Order. The parties filed a
`joint status report on August 27, 2019 (docket entry no. 76) indicating that no redactions are necessary.
`And so, the Court is reissuing its Memorandum Opinion and Order, dated August 26, 2019 as the public
`opinion.
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`

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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 2 of 22
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`Scott E. Pickens, Counsel of Record, Michael A. Hordell, Matthew J. Michaels, Scott N.
`Godes, Of Counsel, Barnes & Thornburg LLP, Washington, DC, for Blue Origin, LLC,
`defendant-intervenor.
`
`Todd R. Steggerda, Counsel of Record, Benjamin L. Hatch, Edwin O. Childs, Jr., Nathan
`R. Pittman, Karlee S. Blank, Blake R. Christopher, Of Counsel, McQuireWoods, LLP,
`Washington, DC, for United Launch Services, LLC, defendant-intervenor.
`
`Kevin Patrick Mullen, Counsel of Record, David A. Churchill, Sandeep N. Nandivada, R.
`Locke Bell, Lauren J. Horneffer, Charles L. Capito III, Of Counsel, Morrison & Foerster, LLP,
`Washington, DC; Maureen F. Del Duca, Kenneth M. Reiss, Of Counsel, Northrop Grumman
`Corporation, Falls Church, VA, for Orbital Sciences Corporation, defendant-intervenor.
`
`MEMORANDUM OPINION AND ORDER
`
`GRIGGSBY, Judge
`
`I.
`
`INTRODUCTION
`
`In this post-award bid protest matter, Space Exploration Technologies Corp. (“SpaceX”)
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`challenges the United States Air Force Space and Missile Systems Center’s (the “Air Force”)
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`evaluation and portfolio award decisions for a request for proposals to provide space launch
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`services for national security missions, issued pursuant to the Department of Defense’s (“DoD”)
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`authority to enter into other transaction agreements. See generally Compl. The government has
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`moved to dismiss this matter for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of
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`the Rules of the United States Court of Federal Claims (“RCFC”). See generally Def. Mot.
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`SpaceX has also moved to transfer this matter to the United States District Court for the Central
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`District of California. See generally Pl. Resp. For the reasons discussed below, the Court: (1)
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`GRANTS the government’s motion to dismiss; (2) GRANTS SpaceX’s motion to transfer
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`venue; and (3) DISMISSES the complaint.
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`II.
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`FACTUAL AND PROCEDURAL BACKGROUND1
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`A.
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`Factual Background
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`SpaceX provides space launch services to the United States Government and to
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`commercial customers. Compl. at ¶ 90. In this post-award bid protest matter, SpaceX
`
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`1 The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Compl.”); the
`corrected administrative record (“AR”); and the government’s motion to dismiss (“Def. Mot.”). Except
`where otherwise noted, the facts stated herein are undisputed.
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`2
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 3 of 22
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`challenges the Air Force’s evaluation and portfolio award decisions for launch service agreement
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`(“LSA”) request for proposal, Solicitation No. FA8811-17-9-001 (the “LSARFP”), to facilitate
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`the development of launch systems in the United States. Compl. at 1. As relief, SpaceX
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`requests, among other things, that the Court: (1) declare the Air Force’s portfolio award decision
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`to be contrary to Congress’s mandate for assured access to space; (2) enjoin any further
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`investment in the launch service agreements awarded by the Air Force; (3) enjoin further
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`performance by the awardees; and (4) require the Air Force to reevaluate proposals. Id. at 78.
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`1. DoD’s Authority To Use Other Transaction Agreements
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`As background, Congress granted the Department of Defense the authority to enter into
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`other transactions (“OT”). 10 U.S.C. §§ 2371(a) and 2371b(a). OTs are agreements that are not
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`procurement contracts, cooperative agreements, or grants. See, e.g., 10 U.S.C. § 2371(a)
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`(authorizing “transactions (other than contracts, cooperative agreements, and grants)”); 32 C.F.R.
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`§ 3.2 (defining “other transactions” as “transactions other than contracts, grants or cooperative
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`agreements”); see also United States Department of Defense, Other Transactions Guide (2018),
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`at 5 (“OT Guide”), https://www.dau.mil/guidebooks/Shared%20Documents/Other%20
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`Transactions%20(OT)%20Guide.pdf (defining OTs as “NOT: a. FAR-based procurement
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`contracts; b. Grants; c. Cooperative Agreements; or d. Cooperative Research and Development
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`Agreements (CRADAs)”).
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` While not defined by statute, the Government Accountability Office (“GAO”) has
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`defined OTs as follows:
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`An ‘other transaction’ agreement is a special type of legal instrument used
`for various purposes by federal agencies that have been granted statutory
`authority to use ‘other transactions.’ GAO’s audit reports to the Congress
`have repeatedly reported that ‘other transactions’ are ‘other than contracts,
`grants, or cooperative agreements that generally are not subject to federal
`laws and regulations applicable to procurement contracts.’
`
`
`MorphoTrust USA, LLC, B-412711, 2016 WL 2908322, at *4 (Comp. Gen. May 16, 2016). The
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`DoD’s OT Guide also provides that OTs are intended “to give DoD the flexibility necessary to
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`adopt and incorporate business practices that reflect commercial industry standards and best
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`practices into its award instruments.” OT Guide at 4. And so, OTs are “generally not subject to
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`the Federal laws and regulations limited in applicability to contracts, grants or cooperative
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 4 of 22
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`agreements” and these agreements are “not required to comply with the Federal Acquisition
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`Regulation (FAR) and its supplements.” 32 C.F.R. § 3.2.
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`Pursuant to 10 U.S.C. § 2731b, DoD may use its other transaction authority to “carry out
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`prototype projects that are directly relevant to enhancing the mission effectiveness of military
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`personnel and the supporting platforms, systems, components, or materials proposed to be
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`acquired or developed by the Department of Defense, or to improvement of platforms, systems,
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`components, or materials in use by the armed forces.” 10 U.S.C. § 2731b(a).2 But, DoD may
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`only use this authority if one of the four conditions set forth below have been met:
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`(A) There is at least one nontraditional defense contractor or nonprofit
`research institution participating to a significant extent in the prototype
`project.
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`(B) All significant participants in the transaction other than the Federal
`Government are small businesses (including small businesses participating
`in a program described under section 9 of the Small Business Act (15 U.S.C.
`[§] 638)) or nontraditional defense contractors.
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`(C) At least one third of the total cost of the prototype project is to be paid
`out of funds provided by sources other than the Federal Government.
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`(D) The senior procurement executive for the agency determines in writing
`that exceptional circumstances justify the use of a transaction that provides
`for innovative business arrangements or structures that would not be
`feasible or appropriate under a contract, or would provide an opportunity to
`expand the defense supply base in a manner that would not be practical or
`feasible under a contract.
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`10 U.S.C. § 2371b(d)(1); see also OT Guide at 13-14; 32 C.F.R. § 3.5. In addition, Congress has
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`required that, “[t]o the maximum extent practicable, competitive procedures shall be used when
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`entering into [OT] agreements to carry out the prototype projects.” 10 U.S.C. § 2371b(b)(2).
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`2. The National Security Space Launch Program
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`The National Security Space Launch program—previously known as the EELV program
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`(the “Program”)—is charged with procuring launch services to meet the government’s national
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`security space launch needs. AR Tab 19 at 786. The Program has an overarching need through
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`2 Title 10, United States Code, section 2358 authorizes DoD to “engage in basic research, applied
`research, advanced research, and development projects.” 10 U.S.C. § 2358(a).
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 5 of 22
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`FY30 to address the challenges of maintaining affordability and assured access to space, which
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`requires the Air Force to sustain the availability of at least two families of space launch vehicles
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`and a robust space launch infrastructure and industrial base. Id. at 787; see also 10 U.S.C. §
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`2273(b). The actions necessary to ensure continued access to space have been defined by
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`Congress to include:
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`(1) the availability of at least two space launch vehicles (or families of space
`launch vehicles) capable of delivering into space any payload designated by
`the Secretary of Defense or the Director of National Intelligence as a
`national security payload
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`(2) a robust space launch infrastructure and industrial base; and
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`(3) the availability of rapid, responsive, and reliable space launches for
`national security space programs to—
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`(A) improve the responsiveness and flexibility of a national security
`space system;
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`(B) lower the costs of launching a national security space system; and
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`(C) maintain risks of mission success at acceptable levels.
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`10 U.S.C. §2273(b).
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`As shown below, the Program involves a multi-phase strategy that will be implemented
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`by the Air Force between FY 2013 and FY 2027 to accomplish the aforementioned actions. AR
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`Tab 19 at 788.
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`5
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 6 of 22
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`
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`Id.
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`a.
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`The LSA Competition
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`The LSARFP involves a competition for the development of space launch vehicles (the
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`“LSA Competition”). Id. at 788. During the LSA Competition, the Air Force sought to develop
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`“launch system prototypes, to include the development and test of any required [rocket
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`propulsion systems], the launch vehicle and its subsystems, infrastructure, manufacturing
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`processes, test stands, and other items required for industry to provide domestic commercial
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`launch services that meet all [National Security Space] requirements.” AR Tab 38 at 1261. The
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`prototype sought to be developed during the LSA Competition includes “[a] fully developed and
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`certified EELV Launch System, including the validation of all non-recurring engineering (NRE)
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`work.” Id. And so, the awardees of the LSA will receive funding from the Air Force and these
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`awardees “will perform prototype development, including system design and development, risk
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`reduction activities, test and evaluation activities, and technical demonstration of system
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`capabilities.” AR Tab 19 at 796.
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`The Air Force expects that following its investment “in the development of prototypes for
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`launch systems,” those systems can be “used to provide commercial launch services that will
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`also be extended to provide [National Security Space] launch services.” Id. at 793. The Air
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`Force also acknowledges that the LSAs will “facilitate development of at least three EELV
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`Launch System prototypes as early as possible, allowing those launch systems to mature prior to
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`a future selection of two [National Security Space] launch service providers for Phase 2 launch
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`service procurements, starting in FY 20[20].” AR Tab 38 at 1260.
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`b.
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`The Phase 2 Procurement
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`During Phase 2 of the Program, the Air Force anticipates awarding two requirements
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`contracts for launch services, delivering multiple national security space missions with annual
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`ordering periods from FY 2020 through FY 2024. Compl. Ex. B at 2. Congress has mandated
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`that, with some exceptions, “the Secretary of Defense may not award or renew a contract for the
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`procurement of property or services for space launch activities under the [Program] if such
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`contract carries out such space launch activities using rocket engines designed or manufactured
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`in the Russian Federation.” FY 2015 National Defense Authorization Act, Pub. L. No. 113-291,
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`6
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 7 of 22
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`128 Stat. 3292, 3626 (2014). And so, a key goal of the Program is to transition from the use of
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`non-allied space launch engines. AR Tab 38 at 1260.
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`The Air Force has described the Phase 2 Procurement as a “follow-on activit[y].” AR
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`Tab 19 at 807; see also id. at 810 (“The follow-on activity will be procurement of launch
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`services.”) The Air Force has also stated that the “LSA is designed to work in synergy with
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`commercial launch vehicle development efforts that will lead in space for decades to come.” AR
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`Tab 47 at 1351.
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`The Phase 2 Procurement is open to all interested offerors. AR Tab 19 at 807. And so,
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`this procurement will not be limited to the organizations that have received awards during the
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`LSA Competition. See AR Tab 19 at 786 (“FAR-based procurement contracts will be
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`competitively awarded to certified EELV launch service providers, which could include
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`companies that were not previously awarded LSAs”); id. at 807 (“[T]he Air Force intends to use
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`a full and open competition to award FAR-based [firm-fixed priced] contracts to two launch
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`providers for [National Security Space] launch service procurements . . .”); see also Status Conf.
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`Tr. at 17:1-17:5, 18:15-18:18.
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`3. The LSA Award
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`The Air Force issued the LSARFP on October 5, 2017. See generally AR Tab 35. On
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`March 21, 2018, the Assistant Secretary of the Air Force (Acquisition, Technology & Logistics)
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`determined that “exceptional circumstances surrounding the [Program] and the domestic launch
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`industry justify the use of a transaction that provides for innovative business arrangements and
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`provide[s] an opportunity to expand the defense supply base in a manner that would not be
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`feasible under a contract.” AR Tab 47 at 1349. And so, the Air Force issued the LSARFP
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`pursuant to DoD’s authority to enter into other transactions. Id.
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`SpaceX and three other companies—United Launch Alliance, LLC (“ULA”), Blue
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`Origin, LLC (“Blue Origin”) and Orbital Sciences Corporation (“Orbital ATK”)—submitted
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`proposals in response to the LSARFP. See AR Tab 136 at 41752. Following discussions,
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`negotiations and the receipt of revised proposals, the Air Force awarded LSAs to Blue Origin,
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`ULA, and Orbital ATK in October 2018. Id. at 41753. The LSAs awarded to ULA, Blue Origin,
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`and Orbital ATK provide these awardees with investment funding to develop launch vehicle
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`prototypes. AR Tab 38 at 1261.
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 8 of 22
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`SpaceX filed an objection to the aforementioned portfolio awards with the Air Force on
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`December 10, 2018. Compl. at ¶ 76; Compl. Ex. R at 2. The Air Force subsequently denied
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`SpaceX’s objection on April 18, 2019. Compl. at ¶ 79; Compl. Ex. R at 1. SpaceX commenced
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`this post-award bid protest action on May 17, 2019. See generally Compl.
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`B. Procedural Background
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`SpaceX commenced this post-award bid protest matter on May 17, 2019. See generally
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`id. On May 21, 2019, Blue Origin and ULA filed unopposed motions to intervene in this matter.
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`See generally Blue Origin Mot. to Intervene; ULA Mot. to Intervene. On May 22, 2019, the
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`Court granted these motions and entered a Protective Order in this matter. See generally
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`Scheduling Order, dated May 22, 2019; see also Protective Order, dated May 22, 2019. On May
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`22, 2019, Orbital ATK filed an unopposed motion to intervene. See generally Orbital Mot. to
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`Intervene. On May 23, 2019, the Court granted this motion. See generally Order, dated May 23,
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`2019.
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`On June 11, 2019, the government filed the administrative record. See generally Initial
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`AR. On June 13, 2019, the government filed a motion to dismiss this matter for lack of subject-
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`matter jurisdiction. See generally Def. Mot. On June 26, 2019, the government filed a corrected
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`administrative record. See generally AR.
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`On June 28, 2019, SpaceX filed a response and opposition to the government’s motion to
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`dismiss and, in the alternative, a motion to transfer venue. See generally Pl. Resp. On July 9,
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`2019, the government filed a reply in support of its motion to dismiss and a response to SpaceX’s
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`motion to transfer venue.3 See generally Def. Reply. On August 15, 2019, the Court held oral
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`argument on the parties’ motions. See generally Oral Arg. Tr.
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`These matters having been fully briefed, the Court resolves the pending motions.
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`III. LEGAL STANDARDS
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`A.
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`RCFC 12(b)(1)
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`When deciding a motion to dismiss upon the ground that the Court does not possess
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`subject-matter jurisdiction pursuant to RCFC 12(b)(1), this Court must assume that all factual
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`3 ULA, Blue Origin, and Orbital ATK have not participated in the briefing of the government’s motion to
`dismiss.
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 9 of 22
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`allegations in the complaint are true and must draw all reasonable inferences in the non-movant’s
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`favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC 12(b)(1). But, a plaintiff bears the
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`burden of establishing subject-matter jurisdiction, and it must do so by a preponderance of the
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`evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citing
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`Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir. 1969)). Should the Court determine that “it
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`lacks jurisdiction over the subject matter, it must dismiss the claim.” Matthews v. United States,
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`72 Fed. Cl. 274, 278 (2006); RCFC 12(h)(3).
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`B.
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`Bid Protest Jurisdiction
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`The Tucker Act grants the United States Court of Federal Claims jurisdiction over bid
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`protests brought by “an interested party objecting to a solicitation by a Federal agency for bids or
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`proposals for a proposed contract or to a proposed award or the award of a contract or any
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`alleged violation of statute or regulation in connection with a procurement or a proposed
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`procurement.” 28 U.S.C. § 1491(b)(1). The United States Court of Appeals for the Federal
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`Circuit has held that the Tucker Act’s bid protest language “is exclusively concerned with
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`procurement solicitations and contracts.” Res. Conservation Grp., LLC v. United States, 597
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`F.3d 1238, 1245 (Fed. Cir. 2010); see also United States v. Testan, 424 U.S. 392, 399 (1976)
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`(“[T]he United States, as sovereign, ‘is immune from suit save as it consents to be sued . . . and
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`the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the
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`suit.’”) (citation omitted). And so, relief in bid protest matters pursuant to the Tucker Act is
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`unavailable outside the context of a procurement or proposed procurement. Res. Conservation,
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`597 F.3d at 1245; see, e.g., Hymas v. United States, 810 F.3d 1312, 1329-30 (Fed. Cir. 2016)
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`(finding no jurisdiction over cooperative farming agreements).
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`The Tucker Act does not define the term “procurement.” See generally 28 U.S.C. §
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`1491(b)(1). But, the Federal Circuit has relied upon the definition of procurement set forth in 41
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`U.S.C. § 111 to determine whether a procurement has occurred. Distributed Sols., Inc. v. United
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`States, 539 F.3d 1340, 1345 (Fed. Cir. 2008) (this section was formerly cited as 41 U.S.C. §
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`403(2)). Section 111 defines procurement to cover “all stages of the process of acquiring
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`property or services, beginning with the process for determining a need for property or services
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`and ending with contract completion and closeout.” 41 U.S.C. § 111; see also AgustaWestland
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`N. Am., Inc. v. United States, 880 F.3d 1326, 1330 (Fed. Cir. 2018); 10 U.S.C. §2302(3) (stating
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 10 of 22
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`that the term “procurement” has the meaning provided in chapter 1 of title 41, United States
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`Code). And so, the Federal Circuit has held that, to establish jurisdiction, a contractor must show
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`“‘that the government at least initiated a procurement, or initiated the process for determining a
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`need for acquisition.’” AugustaWestland, 880 F.3d at 1330 (quoting Distributed Sols., 539 F.3d
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`at 1346) (internal quotations omitted).
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`Specifically relevant to this dispute, in Hymas, the Federal Circuit held that the
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`competitive requirements of CICA did not apply to the United States Fish and Wildlife Service’s
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`cooperative farming agreements, because the cooperative farming agreements were not
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`procurement contracts under the Federal Grant and Cooperative Agreement Act. 810 F.3d at
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`1320, 1329-30. And so, the Federal Circuit concluded that this Court must dismiss a bid protest
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`action challenging the government’s award of these agreements for lack of subject-matter
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`jurisdiction. Id. at 1330.
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`The Federal Circuit has also considered the meaning of the phrase “in connection with a
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`procurement or a proposed procurement.” See 28 U.S.C. § 1491(b)(1). In this regard, the
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`Federal Circuit has held that “[t]he operative phrase ‘in connection with’ is very sweeping in
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`scope.” RAMCOR Servs. Grp., Inc. v. United States, 185 F.3d 1286, 1289 (Fed. Cir. 1999). The
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`Federal Circuit has also held that an alleged statutory violation suffices to supply Tucker Act
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`jurisdiction, so long as the statute has a connection to a procurement proposal. Id. In addition,
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`the Federal Circuit has recognized that Congress intended for all objections connected to a
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`procurement or proposed procurement to be heard by this Court. See Emery Worldwide Airlines,
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`Inc. v. United States, 264 F.3d 1071, 1079 (Fed. Cir. 2001) (noting that the Administrative
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`Dispute Resolution Act of 1996 made clear that “Congress sought to channel the entirety of
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`judicial government contract procurement protest jurisdiction to the Court of Federal Claims”).
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`And so, the Federal Circuit has held that “a narrow application of section 1491(b)(1) does not
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`comport with the [Tucker Act’s] broad grant of jurisdiction over objections to the procurement
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`process.” Sys. App. & Techs., Inc. v. United States, 691 F.3d 1374, 1381 (Fed. Cir. 2012).
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`There are, however, limits to the Court’s bid protest jurisdiction under the Tucker Act.
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`For example, the Federal Circuit held in AgustaWestland that an execution order regarding the
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`use of Army helicopters was not “in connection with a procurement or proposed procurement,”
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`“because it did not begin ‘the process for determining a need for property or services.’” 880
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 11 of 22
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`F.3d at 1331 (quoting Distributed Sols., 539 F.3d at 1345). In Geiler/Schrudde & Zimmerman v.
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`United States, the Federal Circuit also held that the Department of Veterans Affairs’ revocation
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`of a bidder’s status as a service-disabled veteran-owned small business was not a decision “in
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`connection with a procurement or a proposed procurement,” because the revocation had no effect
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`upon the award or performance of any contract. 743 Fed. App’x 974, 977 (Fed. Cir. 2018).
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`Similarly, in BayFirst Sols, LLC v. United States, this Court addressed the limits of the
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`phrase “in connection with a procurement or proposed procurement” in determining whether the
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`Federal Acquisition Streamlining Act’s bar on challenges in connection with the issuance or
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`proposed issuance of a task or delivery order would bar the cancellation of a solicitation. 104
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`Fed. Cl. 493, 507 (2012). In that case, the Court determined that the cancellation decision was
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`not “in connection with” the task order award, because the cancellation decision was “a discrete
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`procurement decision and one which could have been the subject of a separate protest.” Id.
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`Lastly, in R&D Dynamics Corp. v. United States, this Court held that a Phase II Small Business
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`Innovation Research (“SBIR”) non-procurement award was not “in connection with” a Phase III
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`procurement, because the SIBR Phase II program appeared to be “of a developmental nature.”
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`80 Fed. Cl. 715, 722 (2007). And so, the Court determined that the SBIR award was not “in
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`connection with” a procurement, notwithstanding the possibility that the SBIR award “may
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`ultimately lead to the development of a capacity to provide goods or services in Phase III.” Id.
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`C.
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`10 U.S.C. §§ 2371 And 2371b
`
`Title 10, United States Code, section 2371 generally provides DoD with the statutory
`
`authority to enter into other transaction agreements in carrying out “basic, applied, and advanced
`
`research projects.” 10 U.S.C. § 2371(a). Pursuant to Title 10, United States Code, section
`
`2371b, DoD may use its OT authority to carry out certain prototype projects. 10 U.S.C. § 2371b.
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`Specifically, this statute provides that DoD may:
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`carry out prototype projects that are directly relevant to enhancing the
`mission effectiveness of military personnel and the supporting platforms,
`systems, components, or materials proposed to be acquired or developed by
`the Department of Defense, or to improvement of platforms, systems,
`components, or materials in use by the armed forces.
`
`10 U.S.C. §2371b(a)(1). Section 2371b also requires that, “[t]o the maximum extent
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`practicable,” DoD use competitive procedures when entering into agreements to carry out the
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 12 of 22
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`prototype projects. Id. at § 2371b(b)(2). In addition, the statute provides that DoD may only use
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`this authority if one of the following conditions are met:
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`(A) There is at least one nontraditional defense contractor or nonprofit
`research institution participating to a significant extent in the prototype
`project.
`
`(B) All significant participants in the transaction other than the Federal
`Government are small businesses (including small businesses participating
`in a program described under section 9 of the Small Business Act (15 U.S.C.
`[§] 638)) or nontraditional defense contractors.
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`(C) At least one third of the total cost of the prototype project is to be paid
`out of funds provided by sources other than the Federal Government.
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`(D) The senior procurement executive for the agency determines in writing
`that exceptional circumstances justify the use of a transaction that provides
`for innovative business arrangements or structures that would not be
`feasible or appropriate under a contract, or would provide an opportunity to
`expand the defense supply base in a manner that would not be practical or
`feasible under a contract.
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`Id. at § 2371b(d)(1).
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`D.
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`Transfer Of Venue
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`Lastly, Title 28, United States Code, section 1631 provides that:
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`Whenever a civil action is filed in a court . . . and that court finds that there
`is a want of jurisdiction, the court shall, if it is in the interest of justice,
`transfer such action or appeal to any other such court . . . in which the action
`or appeal could have been brought at the time it was filed or noticed.
`
`28 U.S.C. § 1631. The Federal Circuit has held that the burden is on the party seeking transfer
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`“to identify the proposed transferee court and show that jurisdiction would be proper there.”
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`Maehr v. United States, 767 Fed. App’x 914, 916 (Fed. Cir. 2019) (per curiam) (citing Hill v.
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`Dep’t of the Air Force, 796 F.2d 1469, 1470-71 (Fed. Cir. 1986)). And so, the Court may
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`transfer a matter to a district court, if the Court determines that it lacks subject-matter jurisdiction
`
`to consider a matter and that a transfer of venue would be in the interest of justice. 28 U.S.C. §
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`1631.
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 13 of 22
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`IV.
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`LEGAL ANALYSIS
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`The government has moved to dismiss this post-award bid protest matter for lack of
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`subject-matter jurisdiction upon the ground that SpaceX’s challenges to the Air Force’s
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`evaluation and portfolio award decisions are not “in connection with a procurement or proposed
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`procurement,” as contemplated by the Tucker Act. Def. Mot. at 24-32. The government also
`
`argues that the Court should dismiss this matter for want of subject-matter jurisdiction, because
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`SpaceX does not allege a violation of a procurement statute. Id. at 32-33. And so, the
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`government contends that the claims asserted in this bid protest matter fall beyond the
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`boundaries of the Tucker Act. Id. at 20-24.
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`In its response and opposition to the government’s motion to dismiss, SpaceX counters
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`that the Court may entertain this bid protest matter because SpaceX alleges non-frivolous
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`violations of law that are in connection with the Air Force’s ongoing procurement of launch
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`services during Phase 2 of the National Security Space Launch Program. Pl. Resp. at 19-25.
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`SpaceX also contends that the Court possesses subject-matter jurisdiction to consider its claims,
`
`because the Air Force violated 10 U.S.C. § 2371b and the Administrative Procedure Act, 5
`
`U.S.C. §§ 551-59, during the LSA Competition. Id. at 31-37. And so, SpaceX requests that the
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`Court deny the government’s motion to dismiss, or, alternatively, transfer this matter to the
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`United States District Court for the Central District of California. Id. at 37-39.
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`For the reasons set forth below, SpaceX has not shown that the Court possesses subject-
`
`matter jurisdiction to consider any of its claims. And so, the Court: (1) GRANTS the
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`government’s motion to dismiss; (2) GRANTS SpaceX’s motion to transfer venue; and (3)
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`DISMISSES the complaint.
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`The Court May Not Consider SpaceX’s Claims
`
`A.
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`The parties appear to agree that the launch service agreements at issue in this bid protest
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`matter are not procurement contracts and that the LSARFP was not a procurement. See Def.
`
`Mot. at 1-2, 24; Pl. Resp. at 5, 16; Def. Reply at 4-6; Oral Arg. Tr. 9:20-10:10. The parties
`
`disagree, however, about whether the Air Force’s evaluation and the portfolio award decisions
`
`for the LSA Competition are, nonetheless, “in connection with a procurement or proposed
`
`procurement,” as contemplated by the Tucker Act. Def. Mot. at 24-32; Pl. Resp. at 19-25.
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`Case 1:19-cv-00742-LKG Document 77 Filed 08/28/19 Page 14 of 22
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`In this regard, SpaceX argues that the Air Force’s evaluation and portfolio award
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`decisions are “in connection with” the ongoing procurement of launch services during Phase 2 of
`
`the Program, because the LSA Competition “was the third step in a multi-stage procurement
`
`process that the [Air Force] devised to fulfill the [a]gency’s identified need to procure domestic
`
`launch services.” Pl. Resp. at 2; see also id. at 19-25. The government counters that the Air
`
`Force’s decisions are not “in connection with a procurement or proposed procurement,” because
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`the LSA Competition involved a solicitation that was separate and distinct from the Phase 2
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`Procurement. Def. Mot. at 28-32; Def. Reply at 11-16. For the reasons set forth below, the
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`Court agrees.
`
`1.
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`LSAs Are Not Procurement Contracts
`
`
`
`As an initial matter, there can be no genuine dispute that the LSAs at issue in this dispute
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`are not procureme