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Public Contract Law Journal

Public Contract Law Journal Vol. 51, No. 1

NASA’s Space Act Agreements: Efficient and Effective Acquisition in Exploring the Final Frontier

Jack McCaffrey


  • Provides a brief history of the American space program and an introduction to Space Act Agreements (SAAs)
  • Discusses the success of the Commercial Orbital Transportation Services (COTS) and Commercial Crew Development (CCDev) programs
  • Argues that NASA should further expand the use of SSAs in deep space missions
NASA’s Space Act Agreements: Efficient and Effective Acquisition in Exploring the Final Frontier
Stocktrek Images via Getty Images

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This Note explores the variety of ways in which NASA uses Space Act Agreements (SAAs) under its “other transactions” authority granted by the National Aeronautics and Space Act of 1958. Primarily, this Note argues that the concerns voiced by detractors of SAAs are exaggerated or misinformed and that SAAs have greatly benefitted the United States’ space program. This Note advocates for an expanded use of funded and non-reimbursement SAAs in future deep space missions because of their cost, safety, and recruitment advantages, as well as their ability to align public and private interests in space.

I. Introduction

On November 15, 2020, the SpaceX Crew-1 mission lifted off the launchpad at the Kennedy Space Center. Within twelve minutes, SpaceX’s Falcon 9 rocket had propelled three American astronauts and one Japanese astronaut into orbit. A little more than twenty-four hours later, the Crew Dragon capsule successfully docked with the International Space Station (ISS). The mission was the first fully operational crewed mission for SpaceX and marked the first time astronauts had traveled onboard an American spacecraft to work aboard the ISS since the shuttle program ended in 2011. This accomplishment underscores a reality that has steadily materialized over the past twenty years—private space travel has arrived, and the National Aeronautics and Space Administration’s (NASA) next sixty years will look a lot different from its first sixty years.

Since its inception in October 1958, NASA has led the way in developing the American government contracts system. During NASA’s sixty plus years as a federal agency, it has achieved incredible scientific and technical achievements in spaceflight, aeronautics, and science. Its accomplishments as an agency include putting men on the moon, exploring the furthest reaches of our solar system, and constructing and maintaining the International Space Station. However, as the November 2020 SpaceX Crew-1 mission proves, NASA no longer stands alone in the field of American space travel and exploration.

This Note examines the traditional role played by commercial actors in the American space program. It explores how NASA has interacted with commercial actors in the government procurement sector over time, detailing the innovative ways that NASA has partnered with private companies. Especially pertinent to this conversation is the role played by NASA’s “other transactions” authority (OTA). Other transaction agreements, or Space Act Agreements (SAAs) as NASA refers to them, are dramatically different from traditional procurement methods and procedures. NASA’s OTA grants the agency broad authority and enormous flexibility to accomplish its goals in space; unlike most federal agencies, NASA can circumvent the strict statutory and regulatory requirements associated with traditional government contracts. This Note argues that despite commonly voiced concerns about other transactions regarding safety, fair competition, oversight, and diminished government control, the agreements are crucial to the success of contemporary space exploration. Going forward, NASA should expand the use of funded and non-reimbursement SAAs in deep space exploration to capitalize on mutually beneficial interests between the public and private sectors, minimize costs, leverage private capital, avoid future accidents, and combat the threat of “brain drain”—the loss of skilled personnel to competitive recruiting by the private sector. Though this Note will mostly focus on NASA’s use of SAAs, it will also discuss how the Department of Defense (DoD) acquires goods and services for military operations in space to demonstrate an alternate, less desirable, approach to space procurement.

II. A Brief History of the American Space Program

NASA and DoD both operate extensively in space and procure similar products and services, including launch vehicles, spacecraft hardware, satellites, and information technology services. However, the ways in which each organization procures for their space programs are quite different. While NASA and DoD have both made extensive use of other transactions, DoD’s use of other transactions remains restricted to research and development (R&D) and prototyping projects. As a result, DoD procures space hardware much like it procures Abrams battle tanks; it routinely purchases from private contractors following the rigid framework laid out in DoD Directives and the Federal Acquisition Regulation (FAR). In contrast, NASA has ventured far beyond R&D and prototyping and has repeatedly used high profile cost-sharing SAAs in recent years to advance their space program. A brief review of the history of the United States’ civilian and military space programs helps to explain why NASA and DoD approach procurement for operations in space differently.

A. Defense-Centric Beginnings

Following the end of World War II, the United States space program formally kicked off when Congress passed the National Security Act of 1947, which assigned responsibility of all space-related activities to the DoD under a joint branch entity called the Research and Development Board’s Committee on Guided Missiles. Despite initial efforts to create a unified national missile program, each branch of the military was operating their own independent missile and space research program by the early 1950s. In the early days of space study and exploration, the military was almost completely focused on projects related to the development of long-range ballistic missiles and aerial espionage, trying to stay ahead in its fierce competition with the Soviet Union. These projects were extremely secretive and commercial participation was limited, with most of the production work carried out by government employees at government facilities. For example, when the United States Air Force conducted the classified reconnaissance program “WS-119L” in 1956 to spy on the Soviet Union, it used high-altitude weather balloons acquired from the company General Mills, but relied on in-house, specially-designed scientific instruments and cameras to collect images and all other information.

After the launch of Sputnik I by the Soviet Union in October 1957, the United States greatly increased spending on space projects. A few months later, the Advanced Research Projects Agency (ARPA) was created with the purpose of consolidating “advanced” research and study (related to space or otherwise) into a centralized DoD authority devoid of inter-branch rivalries and inefficiencies. However, ARPA quickly lost much of its authority when the United States’ civilian space agency, NASA, was founded in July 1958. NASA took control of many of ARPA’s projects, including all projects dedicated to human exploration in space. In 1959, ARPA was placed under the authority of the Office of the Director of Defense Research and Engineering (DDR&E). With the support of ARPA, DDR&E went on to play a crucial role in the production of military satellites and ballistic missile technology during the 1960s.

B. Arrival of Manned Space Flight

In the eleven years between NASA’s founding in July 1958 and the first lunar landing in July 1969, the agency was responsible for launching dozens of unmanned spacecrafts and famously conducting a series of ambitious manned space missions that amazed the world. Unlike DoD, which relied primarily on in-house staff for its space projects, NASA promptly made the decision to maximize the use of private industry to conduct its space program. Rather than build mission hardware, NASA preferred to avoid manufacturing anything that could reasonably be provided by private firms. In fact, NASA procured all of its command service modules from private companies for projects Mercury, Gemini, and Apollo (including test models). Instead of manufacturing spacecraft, NASA’s engineers were typically tasked with planning and establishing design specifications for acquisition purposes. The approximately ten percent of in-house production that NASA did undertake was conducted mostly as a means of ensuring that NASA’s engineers understood the production process enough to competently procure spacecraft hardware. This approach allowed NASA to take full advantage of experienced and capable manufacturers already existing in the private sector. It also allowed NASA to rapidly scale up manpower without getting bogged down by civil service rules pertaining to government employees. By 1968, NASA was procuring eighty-three percent of its resources from private firms, up from an initial forty-one percent in 1959.

The United States Air Force had become the “front-runner” of military missions in space by 1959 because NASA had absorbed a large portion of the Army’s and Navy’s space projects and facilities. In March 1961, the Kennedy administration formally cemented the Air Force’s status as the “executive agent” of military space development. It issued Department of Defense Directive 5160.32, which granted the Air Force authority over the research, construction, operation, and testing of all DoD space projects. The Air Force Systems Command was then created to manage all Air Force space operations. Like NASA, which was conducting its human space program with the help of an army of private contractors, the Air Force Systems Command turned to private contractors to close the “missile gap” in the Cold War nuclear arms race. NASA historian Arnold Levine writes:

In essence, the Air Force turned to private contractors because it had neither the depth of competence found in Army laboratories nor the time to recruit engineers. For various reasons, including politics, the Air Force preferred to foster a civilian aerospace industry in peacetime. The research and development capabilities were there, ready to be exploited. Moreover, many Air Force weapons managers were convinced that, in contrast to the Army’s arsenal system, “intimate relations with industry did promote a significant shortening of the long period of weapons gestation.”

Utilizing private industry, the Air Force Systems Command rapidly expanded military space programs and constructed new facilities throughout the 1960s.

C. From Cold War to Present

DoD continued procuring ballistic weapons and space systems from private companies throughout the 1970s under the direction of Air Force Systems Command, and after 1985 under the newly-formed Air Force Space Command. Today, DoD remains heavily involved in space and fulfills many of its needs through commercial procurement. Modern items commonly procured include space components (satellites), ground components (control systems and facilities), personal equipment (radios and terminals), and launch vehicles.

According to the Government Accountability Office (GAO), DoD plans on spending “more than $65 billion from fiscal year 2019 to 2023 to acquire space systems that will provide critical capabilities to support military and other government operations.” Chief among these projects is the National Security Space Launch Program, a twenty-six year old program noted for over seventy-five successful launches of national security satellites. The program’s goal is to ensure DoD’s continued access to space through the procurement of dependable launch vehicles, with plans to carry out twenty-five launches between 2022 and 2026. The National Security Space Launch Program and most other modern DoD space procurement processes follow nearly the same traditional acquisition format used to procure weapons. To acquire both weapons and space products, DoD often procures custom-designed technologies from private firms who follow directions and specifications devised by government personnel. The Defense Federal Acquisition Regulation Supplement (DFARS) enforces a rigid relationship between DoD and contractor that emphasizes government oversight and control.

In contrast, NASA’s acquisition strategy has become increasingly variable and has placed more control in the hands of private enterprise. Along with a broad grant of authority to engage in contracts to procure goods and services necessary to advance the American civilian space program, the Space Act of 1958 gave NASA the authority to engage in “other transactions” (OTs), or Space Act Agreements (SAAs). The original purpose of allowing NASA to engage in SAAs was to enable the agency to compete in the hypercompetitive global Space Race unhindered by procurement regulations and restrictions.

III. Introduction to the SAA

To better understand the potential benefits and drawbacks of SAAs, it is first necessary to understand some key differences between SAAs and traditional procurement vehicles. SAAs are authorized under the National Aeronautics and Space Act of 1958 (the Space Act) as part of NASA’s authority to enter into “other transactions,” or transactions that fall outside of procurement contracts, grants, cooperative agreements, and cooperative research and development agreements (CRADAs). NASA is not alone in its other transaction authority (OTA); Congress has granted this authority to eleven other executive agencies since 1958. While most agencies with OTA use it sparingly (nine out of eleven agencies with OTA had seventy-five or fewer other transaction agreements in fiscal year 2010), NASA uses its OTA much more frequently, having conducted 2,217 SAAs in fiscal year 2010. This number rose to 3,223 conducted SAAs only four years later. Unlike the OTA grants of other agencies, the Space Act does not place any restrictions on the types of projects under which NASA may use an SAA.

NASA commonly uses SAAs to enter into partnership agreements with external entities. The agency describes SAAs as agreements that “establish a set of legally enforceable promises between NASA and the Partner . . . requiring a commitment of NASA resources (including goods, services, facilities, or equipment) to accomplish stated objectives.” SAAs commit government resources, such as personnel, services, and funds, to outside parties to accomplish agency objectives. Although similar partnership-like agreements can be facilitated through other contract vehicles, such as CRADAs, SAAs are the most common instrument utilized by NASA to form partnerships. Unlike CRADAs and other traditional procurement vehicles, SAAs are not formally regulated by the FAR; however, official, nonbinding policies regarding their use are laid out in an internal NASA Policy Directive.

There are three main types of SAAs: reimbursement SAAs, non-reimbursement SAAs, and funded SAAs. NASA defines reimbursement SAAs as “agreements in which the partner reimburses NASA in accordance with financial policy.” These agreements tend to arise when NASA seeks to make its unique facilities, services, or goods available to a domestic or international partner in exchange for reimbursement. A classic example of a reimbursement SAA is the agreement between NASA’s Ames Research Center and the Air Force to lease the National Full-Scale Aerodynamic Complex. The building was in need of a rehaul and was underutilized by NASA before the agreement was reached. As a result of reimbursement funds received from the Air Force, NASA was able to upgrade and maintain the facility.

In contrast, non-reimbursement SAAs require that “each party bears the cost of its participation, and there is no exchange of funds between them.” These agreements are utilized to take advantage of “a mutually beneficial activity that furthers the Agency’s objectives.” A good example of a non-reimbursement SAA is an ongoing agreement between NASA’s Robust Software Engineering group and Boeing’s Research and Technology Center. This agreement provides that NASA will deliver to Boeing Verification and Validation software related to autonomous aircraft technologies in exchange for a commitment to supply information that will help NASA adapt and improve the software.

Funded SAAs can be thought of as a grant-type agreement, where NASA agrees to provide funds and/or other resources to a partner to accomplish a mission that does not directly benefit the agency, but advances the agency’s goals. The Policy Directive instructs that funded SAAs may only be used “when the Agency cannot accomplish its objectives through the use of a procurement contract, grant, or cooperative agreement, and only after full and open competition.”

A. How SAAs Are Different

There are five major differences between SAAs and traditional procurement vehicles. The first and foremost difference is that SAAs are not forced to follow complex regulatory requirements and procedures. In a typical procurement contract, NASA is required to abide by a number of statutes and regulations, including the Truth in Negotiations Act (TINA), the Cost Accounting Standards (CAS), the FAR, and the NASA FAR Supplement (NFS). These rules and regulations dictate how NASA will proceed at every step of the procurement process and lay out strict rules to ensure “full and open competition.” However, because SAAs are not considered contracts for the procurement of goods and services, they are not subject to any of these statutes and regulations. Additionally, SAAs are subject to significantly fewer collateral obligations. SAAs are not required to follow socioeconomic policies related to equal opportunity, human trafficking, payment of prevailing wages, or small business subcontracting.

The second significant difference between SAAs and traditional procurement vehicles is that the substance of SAA protests are not subject to review by the GAO. A party challenging the award of an SAA before the GAO can prevail only by showing that the purpose of the agreement was to acquire goods and services “for the direct benefit of the [agency]” and thus the agreement was actually a procurement contract made under the guise of an SAA. The same limitation applies to the Court of Federal Claims; any protest that is not related to a procurement contract or “in connection with a procurement” falls outside of the Court’s bid protest jurisdiction. As a result, the only way to successfully protest an SAA source selection decision is to demonstrate that the use of an SAA was prohibited under the circumstances or that NASA’s actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” in violation of the Administrative Procedure Act.

The third difference between SAAs and traditional procurement vehicles is the availability of cost-sharing agreements. Traditional procurement vehicles call for a government agency to pay a contractor for performance or, in a grant-type transaction, the government subsidizes a party. Non-reimbursement and funded SAAs, on the other hand, allow for cost-sharing agreements between the government and contractor, creating a unique partnership in which risk, participation, and performance are allocated to both offeror and offeree.

The fourth difference between SAAs and traditional procurement vehicles is that SAAs typically offer more favorable intellectual property terms to the contractor. NASA has the flexibility to negotiate the terms of the patent rights clause in any SAA agreement. Therefore, in many cases NASA may waive government purpose rights licenses for a period of time so that private contractors may enjoy exclusive property rights and derive increased return on their investment. In SAA agreements where the contractor does not acquire funds from NASA, the default patent rights clause even goes as far as to denounce any right NASA may have to property produced under the agreement. This has resulted in a novel situation in which NASA astronauts are being carried to space aboard a spacecraft owned entirely by a private corporation. Such a result is impossible under traditional procurement vehicles which can only be used when the government directly benefits from, or directly uses, the acquired goods or services.

The fifth and final major difference between SAAs and traditional procurement vehicles is that SAAs encourage (and often mandate) continuous private investment by the contractor. Many traditional procurement vehicles, such as firm-fixed-price contracts, are designed to motivate the contractor to spend as little money as possible to complete the contract. SAA contracts, on the other hand, often expect and require that private contractors secure additional funds as the project progresses to cover the costs of their participation. In other words, NASA typically contributes only part of the resources required to successfully complete the project. For example, NASA made it clear in its solicitation for the Commercial Orbital Transportation Services program (to be discussed infra Section III) that partners were “expected to secure additional funds to supplement the NASA funding.” Additionally, SAAs do not typically include termination for convenience clauses and other termination privileges that are present in a traditional procurement contract. This further encourages private investment because it alleviates the risk of loss due to premature termination.

B. Statutory and Regulatory Limitations

Though SAAs are largely unregulated and more closely resemble private partnership contracts than traditional government contracts, they do face a few limitations. The main limitation on NASA’s OTA is that the agreements may not be used for the acquisition of goods and services for the agency’s direct benefit and use. Any transaction that does so is considered a “procurement contract” subject to traditional contract rules and regulations. However, GAO case law suggests that even this limitation is relatively ineffective and infrequently a bar; a challenge alleging that NASA improperly utilized an SAA when a procurement contract was required must be filed before the closing date for receipt of proposals. As a result, very few of these challenges have succeeded, and NASA’s ability to use SAAs remains unhindered.

The second limitation on NASA’s ability to engage in SAAs comes from internal policies established within agency directives. Under NASA policy, all agreements must comply with a preliminary abstract review process, establish clear performance milestones, define financial commitments, allocate liability and intellectual property rights, and abide by other procedural policies. More significantly, NASA limits its use of SAAs to instances in which objectives could not have been accomplished through the use of traditional procurement methods.

IV. Success with Contemporary SAAs: COTS and CCDev

While NASA has utilized SAAs since the 1960s, the agency has greatly increased its use of SAAs in the twenty-first century and especially in recent years. This increase is partially due to major “changes [to] programmatic priorities,” such as the termination of the Space Shuttle Program, which has freed up agency resources for use by parties outside of NASA. Examples of common contemporary SAAs include a year-long agreement signed in 2009 that allowed a private company to use NASA’s Supersonic Wind Tunnel in Ohio and a fifteen-year-long agreement signed in 2000 with the French National Center for Space Studies “to develop, launch . . . and return capabilities for transporting laboratory equipment to the International Space Station.” Since 2010, NASA has even utilized SAAs to engage in atypical transactions to advance less prominent policy goals such as stimulating public education and participating in community outreach.

The Commercial Orbital Transportation Services (COTS) and Commercial Crew Development (CCDev) programs, however, are by far the most significant SAA programs in NASA history. The COTS program began in 2006 when NASA initiated SAAs with several American companies after requesting proposals to develop technologies that could more efficiently transport cargo to the International Space Station. SpaceX was among those selected “to develop and demonstrate vehicles, systems, and operations needed . . . to perform earth to orbit space flight demonstrating [cargo and delivery specifications]” under an SAA partnership that provided the company with milestone payments from NASA. Within six years, SpaceX became the first private company to dock with the International Space Station. In 2009, NASA announced the CCDev program, which utilized an SAA similar to that used in the COTS program, but with the ultimate objective of developing vehicles to carry astronauts into orbit. SpaceX once again rose to the occasion and became the first private company to transport astronauts to the International Space Station in 2020. NASA considers the COTS and CCDev programs great successes, citing taxpayer savings, benefits to the American economy, and the accomplishment of all established mission goals. NASA’s final report on COTS proclaims that “the NASA Commercial Crew & Cargo Program Office . . . succeeded in inaugurating a new era in spaceflight . . . [and] demonstrated that the space agency could rely on non-government providers for safe, reliable, and cost-effective cargo delivery services.”

V. NASA Should Further Expand the Use of SAAs in Deep Space Missions

As illustrated by the success of NASA’s COTS and CCDev partnerships, SAAs are tried and proven tools that offer many benefits over the traditional procurement method of directly purchasing space vehicles and services. Going forward, NASA should expand the use of funded and non-reimbursement SAAs to manned and unmanned deep space missions in order to capitalize on mutually beneficial interests, minimize costs, take full advantage of private capital, avoid future accidents, and combat the threat of “brain drain”—the loss of skilled personnel due to competitive recruiting by the private sector.

A. Current and Future Space Policy Goals & Public/Private Compatibility

Key to this discussion is whether public and private interests in space are compatible. If commercial space interests do not align with NASA’s policy goals, or harm the public interest, there is little doubt that expanding the use of SAAs would be inadvisable regardless of any improvements in efficiency or safety. Fortunately, NASA’s current goals and aspirations are nearly identical to those of leading private space companies like SpaceX and Blue Origin.

Since the first commercial satellite was launched in 1965 to provide television services to American consumers, there has been a boom in private interest and investment in orbital space flight. In recent times, NASA was able to take advantage of aligned interests with the private sector to facilitate the development of low earth orbital (LEO) delivery vehicles via the COTS program. The program greatly benefitted NASA and the American space program because privately developed vehicles, such as SpaceX’s Falcon 9 rocket, proved to be significantly more efficient in delivering cargo into orbit. After the success of the COTS and CCDev programs, NASA firmly believes that its interests in LEO complement private interests. The agency’s priority goals for fiscal year 2020–2021 include an explicit goal to promote commercialization in LEO.

But opportunities for cooperation and mutual benefit between the private sector and NASA are not limited to unmanned satellites and LEO cargo delivery systems. With the emergence of reusable rocket technologies and the drastic reduction of costs associated with sending spacecraft into outer space, interest in commercial space tourism and manned commercial spaceflight beyond LEO is growing rapidly. Elon Musk’s Starship, which is expected to launch a handful of tourists around the moon sometime in the 2020s, and Blue Origin’s New Shepard suborbital vehicle are prime examples of the latest advancements in commercial human spaceflight. NASA has already taken advantage of commercial interests in human spaceflight development, most notably through the previously discussed CCDev program. However, NASA officials continue to limit SAA partners to low-Earth orbit (LEO) and cargo delivery missions, and they seem unwilling to extend the use of SAAs to manned missions in deep space. NASA should not hesitate to partner with commercial actors on future projects exploring Mars and beyond because doing so would allow the agency to fully take advantage of shared interests with private companies seeking to profit in deep space. Likewise, NASA should further encourage companies like SpaceX, Blue Origin, and Boeing to succeed in operations beyond orbital flight by engaging in funded and non-reimbursement SAAs that will not only support and expand an American industry worth billions of dollars, but will also aid agency objectives, such as putting people on Mars and further exploring our solar system.

B. SAAs Promote Cost-Sharing and Cost Minimization

A significant advantage offered by SAAs over traditional procurement methods is that they allow for cost-sharing agreements that have the potential to save taxpayers billions of dollars. While COTS SAAs called for a 50/50 contribution from NASA and commercial partners in vehicle development programs, the agency ended up spending only $788 million while private industry contributed $1 billion. These excess contributions came from variable investment made by private partners throughout the duration of the COTS program. Such funds would have been unavailable if traditional procurement methods had been used. NASA saved at least $1 billion through this arrangement, assuming that a program using traditional procurement methods without SAAs would have spent the same amount of money in the aggregate.

Additionally, SAAs avoid cost overruns that are typical in large government-run space projects. For example, a 2016 report by the GAO concluded that issues related to DoD space acquisitions management and administrative oversight had resulted in delays and increased costs, amounting to potentially billions of dollars. Administrative problems with procurement are not unique to DoD; NASA’s Inspector General recently bemoaned the growing cost and delays affecting the production of the Gateway lunar station as part of Project Artemis. During the ongoing debacle, a NASA contractor was forced to cancel a subcontract due to changes in planning after having already paid $27.5 million. SAAs can help NASA avoid unexpected cost overruns by eliminating the reoccurring administrative costs of procuring from private contractors and countering unexpected costs with private investment.

C. SAAs Encourage Greater Safety in Human Spaceflight

While detractors of SAAs may be concerned that ceding control over the production and development of space vehicles could endanger crew safety, it is actually more likely that increasing the use of SAAs will make space travel safer. The NASA space shuttle program was the subject of two horrific accidents that resulted in the total loss of entire astronaut crews in 1986 and 2003. The Challenger space shuttle disaster was NASA’s first fatal non-training accident, and the incident shook the agency to its core. Stunned spectators watched in horror as the launch vehicle exploded and subsequently disintegrated seventy-three seconds after liftoff during STS-51-L. It was later revealed that the disaster was caused by a leaking O-ring seal on one of the solid rocket boosters. The private manufacturer of the booster, Morton-Thiokol, had known that there was a problem with the O-rings for years before the disaster. The night before the ill-fated launch and during a teleconference with NASA, Morton-Thiokol had advised NASA to delay the launch due to concerns that unusually low temperatures at the scheduled launch time could cause a catastrophic failure of the O-rings. However, NASA officials who were facing the pressure of imminent deadlines in an already behind-schedule shuttle program challenged the recommendation and pressured the contractor to reassess, and Morton-Thiokol subsequently modified its position and recommended that the mission go ahead.

NASA repeated its mistake seventeen years later when a piece of insulating foam fell from the space shuttle Columbia’s external tank during takeoff, damaged the shuttle’s left wing and resulted in catastrophic structural failure on reentry that killed all seven of the crew. The agency had been aware of the danger posed by dislodged foam for years, but failed to take preventative action because foam debris was deemed an unavoidable and acceptable hazard.

In each instance, NASA grew dangerously complacent with deviation from expected performance, in a phenomenon coined the “normalization of deviance” by sociologist Diane Vaughan. When people are exposed to “deviant behavior” repeatedly, such as unexpected wear in O-rings or dangerous foam strikes, they tend to become more accustom to mishap and “the unexpected becomes the expected.” As illustrated by both space shuttle disasters, this phenomenon is especially dangerous when those who produced the affected part and who possess the most knowledge regarding its capabilities and weaknesses (the contractor) are placed in an inferior position to NASA officials. If Allen McDonald, a Morton-Thiokol engineer who participated in the fateful pre–mission conference and who refused to support the decision to launch, had worked for a company that had a cost-sharing SAA partnership with NASA rather than just a procurement contract, it seems likely that his firm would have taken his advice and stuck with their initial decision to advise not to launch. Indeed, it is also possible that under a SAA, Morton-Thiokol would have been in a position to scrub the launch themselves.

By giving contractors more control, SAA partnerships can foster a culture of safety. Unlike NASA, SpaceX has shown that it is more than willing to cancel or delay missions regardless of the costs when safety is in question. For example, SpaceX has scrubbed multiple important launches including the first manned Dragon capsule mission on May 27, 2020. The launch was cancelled only twenty-minutes before scheduled departure due to weather concerns. Even if an SAA were to specify that NASA would make all decisions regarding launches, the elevation of a private firm from a mere “contractor” under the traditional procurement regime to a “commercial partner” under an SAA puts the firm in a better position to voice their concerns.

D. SAAs Will Tackle the “Brain Drain”

Over the course of the last two decades, SpaceX, Blue Origin, and other commercial space actors have grown substantially in size, employing a growing portion of talent in the space industry. SpaceX employed 8,000 people in 2020 and Blue Origin planned to expand to 2,600 employees in 2019. Because the government cannot compete with the salaries paid by private companies, it is increasingly experiencing difficulties hiring qualified and knowledgeable personnel to work on government space programs. DoD has been hit especially hard by personnel shortages, with the GAO reporting “that it is particularly difficult to attract people with certain technical expertise, such as cybersecurity and systems engineering” and that “a large number of mid-level procurement contracting officer positions [are] vacant.” The Air Force has identified another reason that personnel are leaving government space programs; many engineers would rather perform “hands-on engineering work” than administer and supervise work conducted by contractors.

While expanding the use of SAAs to accomplish NASA’s deep space objectives would likely result in even less “hands-on engineering work” being conducted by NASA personnel, adopting this strategy would solve the “brain drain” issue by shifting hiring expectations and needs. Rather than clinging to the traditional procurement strategy of employing engineers to establish design specifications for acquisition purposes, supervising the work, and completing whatever is left in-house, NASA should accept the fact that it cannot out-compete the private sector and adapt its methods of acquisition accordingly. By adopting an acquisition strategy that replaces many procurement contracts with SAAs, NASA could further wield the expertise of the private sector without having to micromanage contractors, reducing the need to hire and retain expert technicians to administer transactions. This would shrink the administrative bureaucracy of NASA and increase efficiency, shifting resources from the administration of contracts to directly covering the costs of production and execution.

VI. Conclusion

As NASA looks forward to future missions in deep space that are expensive, high risk, and high-profile, it is imperative that the agency makes use of the most efficient and effective acquisition strategies available. While SAAs are subject to fewer rules and regulations designed to prevent corruption, anti-competitive practices, and promote transparency, NASA is free to address these concerns in any SAA simply by adopting existing contract clauses from the regulatory structure. Additionally, it is important to keep in mind that this Note advocates for expanded SAA use in deep space exploration; like any other type of contract vehicle, SAAs may not be appropriate in other areas of space procurement. Because these projects are high profile and routinely scrutinized by both the press and Congress, reducing regulation is significantly less likely to result in corruption or unfair practices than in other contexts. Despite potential drawbacks, SAAs are optimally situated to resolve novel issues in space exploration procurement because they allow NASA to take advantage of compatible goals between the public and private sectors, minimize costs to the taxpayer, promote safety in spaceflight, and overcome recruiting issues. Therefore, the risks presented by SAAs are well worth the reward.