could encompass several alternatives, such as procurement contracts with industry and universities, interagency agreements, or international cooperation. The Agency may also provide financial and/or technical assistance to others in the form of grants, cooperative agreements, or SAAs to foster activities that support the Agency's overall mission when that mission can be met by advancing a public purpose instead of acquiring property or services for the direct benefit or use of NASA. The Agency also has the authority to enter into other types of arrangements depending on the circumstances, such as leases, concession agreements, property loan agreements, and Cooperative Research and Development Agreements (CRADAs), for example. NASA must take into account the opportunities and limitations presented by each option when it formulates its approach, as each authority is subject to its own set of related laws, regulations, and policies.
In this context, the Agency has determined that the purpose of the CCP is to facilitate the development of a U.S. commercial crew space transportation capability with the goal of achieving safe, reliable, and cost effective access to and from LEO and the ISS. Ensuring that the capability resulting from this effort will meet NASA’s ISS crew transportation needs is a key aspect of the Program objectives. This purpose is significantly different than the purpose of NASA’s Commercial Orbital Transportation Services (COTS) project, which encouraged the demonstration of a commercial on-orbit cargo delivery capability, but did not require use of the ISS as the orbital test bed or impose any technical requirements beyond those required to ensure the safety of the ISS and crew if a Partner chose to use the ISS for demonstration, the SSP 50808, ISS Interface Requirements Document.
Consistent with the approach outlined above, when considering the life-cycle process of design, development, test, and evaluation, the Agency considered different authorities (including SAAs) for the initial design phase. For example, NASA considered an SAA approach that would include negotiated tailored milestones, specific to each Commercial Partner's design, and accommodating different Commercial Partners' schedules due to
staggered states of maturity in the industry. During this design phase under an SAA, no NASA Crew Transportation System (CTS) requirements would be levied on the Commercial Partners. (Just as in COTS, NASA would not impose any technical or certification requirements
specifically relating to transporting NASA cargo. NASA’s cargo transportation requirements were implemented under the CRS contract.)
As the Agency progressed through its analysis, it became increasingly apparent that ensuring that the systems developed during the initial design process would meet NASA’s certification requirements for ISS crew transportation was a significant objective of the CCP as a whole. The Agency also needed to be able to acquire data during the development activities to further inform the Phase 2 and future services requirements. In reviewing the various authorities available to support the CCP effort, the Agency determined that a procurement contract would best support NASA’s need to ensure that the work under CCP would result in a CTS system certified for NASA’s use.
NASA recognizes industry’s needs to minimize cost accounting and pricing requirements, and balance intellectual property rights, while protecting both parties’ investments. Through its acquisition strategy, NASA plans to minimize the administrative overhead burden with respect to Cost Accounting Standards (CAS) and the requirements for certified cost or pricing data. NASA does not intend to require certified cost or pricing data at contract award and is considering a waiver for certified cost or pricing for contract modifications.
NASA also plans to maximize industry’s retention of intellectual property rights. NASA recognizes that the standard FAR data rights clause would restrict the ability of contractors to effectively service non-NASA customers. A deviation to the standard data rights is planned to limit when the Government shall have unlimited rights in data. The proposed plans for CAS, cost, or pricing data and data rights will be released for industry review and comment in NASA’s draft Request for Proposal for the Integrated Design Phase.
Thank you again for your interest and input regarding the future acquisition strategy of the CCP. We look forward to continued collaboration as we evolve our Program strategy based on input from all our stakeholders.
Frequently Asked Questions
1. Don’t all NASA funded SAAs include requirements? I see several “shall” statements in the CCDev agreements, how can NASA say it cannot include requirements in a Space Act Agreement?
All SAAs contain performance obligations that each party must meet in order to successfully complete the SAA. This is true whether the SAA is funded, non-reimbursable, or
reimbursable. Some performance obligations, such as reporting or payment obligations, are necessary for the successful administration of the SAA. Other performance obligations, such as compliance with NASA technical documents or policies relating to the safety of personnel and property, are requirements that must be met by all NASA personnel, contractors, SAA Partners, and others, when applicable. For example, NASA’s Space Act Agreements Guide (SAAG) specifies that all SAAs contain a requirement that any access by a Partner to NASA facilities or property “is contingent upon compliance with NASA security and safety policies” (see SAAG, page 89). Although those performance obligations may be expressed as “shall” statements or requirements under the SAA, those obligations are not technical requirements from a procurement perspective because they are not imposed to ensure an outcome that meets an Agency need.
2. Isn’t SSP 50808, ISS Interface Requirements Document (IRD), a NASA technical requirement? How was NASA able to impose this requirement under COTS?
When determining whether a performance obligation under a proposed agreement is the type of “requirement” that would be imposed under a procurement contract, the purpose underlying the requirement is reviewed. Under the COTS Announcement, using the ISS as a
demonstration test bed was an option for any provider. However, a provider that proposed conducting operations near or berthing to the ISS was advised that their operations would be subject to the IRD. Compliance with the IRD was a condition of using the ISS as an orbital demonstration test bed, not a requirement under the Announcement (see Announcement No. COTS-01-05, page 3, “NASA intends to provide the ISS as the orbital destination and active test bed if the ISS visiting vehicle requirements are satisfied. Participants may propose an alternative orbital test bed for the capability demonstrations.”) The purpose of requiring compliance with the IRD was to ensure the safety of the ISS and the crew on-board. In order for NASA to impose requirements relating to transporting NASA cargo for the purpose of obtaining a service for NASA, a procurement contract was used – the Cargo Resupply Services (CRS) contract. The purpose of CCP is more similar to CRS than COTS – compliance with NASA requirements will not be optional and the purpose of the requirements will be to support development of a service NASA can use.
3. Didn’t the GAO say in the Rocketplane Kistler decision (B-310741, January 28, 2008) that NASA could impose representative requirements on providers under SAAs? In the Rocketplane Kistler decision, the GAO quoted Announcement No. JSC-COTS-2, page 1, which stated:
As a continuation of the project initiated in 2006, NASA intends to enter into a second round of agreements with private industry to develop and demonstrate the vehicles, systems, and operations needed to resupply, return cargo from, and transport crew to and from a human space facility, with the International Space Station providing the representative requirements for such a facility.
The GAO did not comment on this statement in its decision, but did hold:
“that the record supports the Agency’s arguments that the principle purpose of the announcement is to encourage, support, and stimulate the development of a commercial market for space transportation, from which NASA could potentially acquire orbital transportation services….we do not find that supporting and stimulating efforts in support of a lawfully mandated public policy establishes that an agency is acquiring services for its own direct benefit and use.”
See Rocketplane Kistler, page 5. The COTS announcement did not impose any requirements on participants for the purpose of meeting NASA’s need for orbital transportation services. 4. NASA’s funded SAAs in COTS, CCDev, and CCDev2 specified deliverable items to be provided to NASA, for example, Milestone 16 of SpaceX’s COTS SAA requires the
physical delivery of a communications unit to NASA. One Provider within CCDev2 has a section in its agreement titled “Project Criteria and Deliverables.” Why does NASA say now that it cannot specify deliverable items under SAA?
NASA receives no deliverable items for its own use under funded SAAs. In the case of data required to be delivered to NASA to support milestones reviews, please see our response to question 7 below. In the example of the SpaceX communications unit, SpaceX was obligated under the SAA to provide this hardware to NASA for integration into the ISS in order to “provide required communications capabilities during proximity operations associated with the flight demonstrations under this Agreement” (see COTS SAA Amendment 3 between SpaceX and NASA). SpaceX retained ownership of the communications units; however, NASA needed to receive both flight and flight-like hardware from SpaceX in order to conduct required safety and integration reviews prior to installing the hardware on the ISS to support the demonstration missions. If NASA took ownership of the hardware to fulfill its own needs, then that would appropriately be a deliverable item for NASA’s use under a contract.
5. NASA states the purpose of the CCP is to support development of a “U.S. commercial crew space transportation capability with the goal of achieving safe, reliable, and cost effective access to and from LEO and the ISS.” How can NASA use a procurement contract to develop commercial services?
Because one of CCP’s significant objectives is to ensure the ultimate result of the development process is the availability of NASA-certified crew transportation services, a procurement contract is appropriate to support development intended to meet NASA’s needs. The CCP’s goal is to tailor an appropriate set of requirements with each provider that ensures that each NASA-certified system is also suitable to support commercial customers.
6. If NASA needs data rights, why can’t it revise the SAA clauses to get the rights it needs?
Under the funded SAAs in COTS, CCDev, and CCDev2, NASA acquired only the minimum Government-purpose rights legally required under the Space Act. NASA uses that data only for evaluating a provider’s performance under the SAA during the term of the SAA. Once the SAA is complete, NASA maintains a confidential archival copy of the data and can only use the data for Government purposes in very limited circumstances. When NASA requires specific data deliverables for the purpose of meeting NASA’s programmatic need for such data
(rather than to support agreement administration and milestone certification), then a procurement contract is used to support the development and delivery of that data. 7. I don’t see that the Space Act has any limitations on NASA’s use of its “other transaction” authority. Why doesn’t NASA believe that it has the flexibility it needs to develop a certified system under SAAs?
The Space Act provides that NASA has the authority to “enter into such contracts, leases, cooperative agreements, or other transactions as may be necessary in the conduct of its work and on such terms as it may deem appropriate….” 50 USC 20113(e). However, the Space Act actually does contain limitations on NASA’s “other transactions” authority in many areas and is only one of the laws and regulations NASA is required to consider when reviewing which authorities to use to accomplish its mission. When other statutes are more specific on a topic or were passed later in time than the provisions of the Space Act, the Agency is required to reconcile them with the provisions of the Space Act to the extent possible. For example, the Federal Grant and Cooperative Agreement Act of 1977 (FGCA) tells NASA that it should use a procurement contract when the principal purpose of the instrument is to acquire (by purchase, lease, or barter) property or services for the direct benefit or use of the U.S. Government or when the Agency decides a use of a procurement contract is appropriate (see 31 USC 6303). Although the FCGA is not in the Space Act, it is (1) more specific regarding the use of contracts to support NASA’s mission and (2) was passed after the 1958 Space Act; therefore, the FCGA must be read together with the Space Act. When interpreting the meaning of a statute and how it should be interpreted, NASA will also review the legislative history of the statute, court decisions, or GAO opinions to determine the scope of its authority in connection with a particular program.