NASA’s Commercial Activities in the 21 st Century

1. NASA’s Commercial Activities in the 21st Century Sumara M. Thompson-King Deputy General Counsel NASA Headquarters Office of the General Counsel October 2012

2. NASA’s Commercial Activities in the 21st Century “New Contracting Techniques for Space Exploration and Utilization” • NASA’s evolving relationships with the private sector • Identifying the purpose of the relationship leads to identification of the appropriate legal instrument to set forth the responsibilities and rights of each party in that relationship • Examining and updating NASA processes and skills

3. NASA’s Commercial Activities in the 21st Century • "Just over one year after the retirement of the space shuttle, we have returned space station cargo resupply missions to U.S. soil and are bringing the jobs associated with this work back to America." • "The SpaceX launch tonight marks the official start of commercial resupply missions by American companies operating out of U.S. spaceports like the one right here in Florida." • Remarks by NASA Administrator Charles Bolden, October 7, 2012 SpaceX CRS-1 Launch

4. NASA’s Commercial Activities in the 21st Century The FutureThe end of the space shuttle program does not mean the end of NASA, or even of NASA sending humans into space. NASA has a robust program of exploration, technology development and scientific research that will last for years to come. Here is what's next for NASA: • NASA is designing and building the capabilities to send humans to explore the solar system, working toward a goal of landing humans on Mars. • The International Space Station is fully staffed with a crew of six, and American astronauts will continue to live and work there in space 24 hours a day, 365 days a year. Part of the U.S. portion of the station has been designated as a national laboratory, and NASA is committed to using this unique resource for scientific research. • Commercial companies are well on their way to providing cargo and crew flights to the ISS, allowing NASA to focus its attention on the next steps into our solar system. • NASA is researching ways to design and build aircraft that are safer, more fuel-efficient, quieter, and environmentally responsible. NASA is also part of the government team that is working to develop the Next Generation Air Transportation System, or NextGen, to be in place by the year 2025. • NASA is conducting an unprecedented array of science missions that will seek new knowledge and understanding of Earth, the solar system and the universe. http://www.nasa.gov/about/highlights/what_does_nasa_do.html

5. NASA’s Commercial Activities in the 21st Century • NASA’s mission is defined in the National Aeronautics and Space Act, Pub. L. No. 111–314, 24 Stat. 3328 (Dec. 18, 2010), 51 USC 201. • formerly theNational Aeronautics and Space Act of 1958, Pub. L. No. 85-568, 42 USC 2451 • § 20112—Functions of the Administration (a)…The Administration, in order to carry out the purpose of this chapter, shall— (1)plan, direct, and conduct aeronautical and space activities; (4) seek and encourage, to the maximum extent possible, the fullest commercial use of space.

6. NASA’s Commercial Activities in the 21st Century • NASA’s focus: • Supporting and implementing a robust program of exploration, technology development and scientific research • Seeking and encouraging, to the maximum extent possible, the fullest commercial use of space.

7. NASA’s Commercial Activities in the 21st Century • Examining the Use of Every Arrow in the NASA Quiver • Using Competitive Processes • Maintaining the Integrity of the Competitive Process • Updating Our Acquisition Practices

8. NASA’s Commercial Activities in the 21st Century • Examining the Use of Every Arrow in the NASA Quiver • Use of the appropriate legal instrument to accomplish the stated objective • Use of the appropriate legal instrument to accomplish the stated objective • Use of the appropriate legal instrument to accomplish the stated objective • Use of the appropriate legal instrument to accomplish the stated objective

9. NASA’s Commercial Activities in the 21st Century • Chiles Act versus Space Act Authority • Federal Grant and Cooperative Agreement Act of 1977, P.L. 95-224, 31 USC 6301 et seq. (Chiles Act) • The Act establishes Government-wide criteria to distinguish between Federal procurement and assistance relationships with other parties. • The choice of award instrument based on the purpose of the agency-recipient relationship. • Procurement contracts are used when the principal purpose of the transaction is the acquisition of property or services for the direct benefit or use of the Federal Government. • Authority Under the Space Act (42 USC 2473(c)(5))(51 USC 20113 • Section 203(c)(5)20113(e): Authorizes NASA to enter into and perform such --contracts, leases, cooperative agreements, or other transactionsas may be necessary in the conduct of its work.

10. NASA’s Commercial Activities in the 21st Century • Cooperative Research and Development Agreements (CRADAs) • Federal Technology Transfer Act of 1986 (FTTA), which amends the Stevenson-Wydler Act of 1980, and Executive Order 12591, “Facilitating Access to Science and Technology.” • Provides NASA authority for joint research with non-Federal entities consistent with its mission • Principal purpose is to transfer federally developed or controlled technology to State and local governments, and to the private sector • Collaborating Party has the option for an exclusive license for a pre-negotiated field of use for any invention developed under the CRADA • Option for an exclusive license under a SAA is not permitted • NASA may not provide any funding to the CRADA Collaborating Party • CRADA authority cannot be used to circumvent statutory and regulatory requirements of federal procurement laws (Chem Services v. EPA)

11. NASA’s Commercial Activities in the 21st Century • International Space Station National Laboratory • The NASA Authorization Act of 2010, which extended station operations until at least 2020, also directed the agency to seek a management partner for the portion of the station that was designated a national laboratory in 2005. • NASA selected the Center for the Advancement of Science in Space (CASIS) to: • develop and manage a diversified research and development portfolio support, • promote and accelerate innovations and new discoveries in science, engineering and technology that will improve life on Earth. • NASA and CASIS entered into a cooperative agreement. • June 26, 2012, CASIS launched its first solicitation for proposals, which focused on advancing protein crystal growth studies in microgravity. • CASIS has issued other solicitations • CASIS has not finalized any agreements.

12. NASA’s Commercial Activities in the 21st Century • Competitive Processes • Awards pursuant to the Competition in Contracting Act • Awards pursuant to the Space Act • Key Controls NASA Employs to Guide Use and Management of Funded Space Act Agreements Are Generally Sufficient, but Some Could Be Strengthened and Clarified,GAO-12-230R, Nov 17, 2011. • Schedule and Affordability

13. NASA’s Commercial Activities in the 21st Century • Maintaining the Integrity of the Competitive Process • Selection Process • NASA Employee Standards of Conduct • Post Award Activities • NASA Employee Standards of Conduct • NASA’s Acquisition Integrity Program

14. NASA’s Commercial Activities in the 21st Century • Updating Our Acquisition Practices • Preparing for the Future • Maintaining Acquisition Integrity While Updating Practices

15. NASA’s Commercial Activities in the 21st Century • Preparing for the Future • Acquisition Workforce • Writing, Training, Workload Distribution, Leadership Development • Role of Program Officials • Writing, Training, Participation in the Source Evaluation Process • Legal Support • Advising and Counseling • Financial Management • Policy and Practices

16. NASA’s Commercial Activities in the 21st Century • Maintaining Acquisition Integrity While Updating Practices • Teleworking • Management and Retention of Records • Social Media • Remote Access versus Co-location

17. NASA’s Commercial Activities in the 21st Century Dragon Captured and Berthed to Station on October 10, 2012. The Antares rocket rolled out to the launch pad at NASA's Wallops Flight Facility on the morning of Oct. 1, 2012.