Aerospace and Related Technologies Update Spring 2021 – Gibson Dunn

April 19, 2021

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This April 2021 edition of Gibson Dunns Aerospace and Related Technologies Update discusses newsworthy developments, trends, and key decisions from 2020 and early 2021 that are of interest to companies in the aerospace, space, defense, satellite, and drone sectors as well as the financial, technological, and other institutions that support them.

This update addresses the following subjects: (1) commercial unmanned aircraft systems, or drones; (2) recent government contracts decisions involving companies in the aerospace and defense industry; and (3) the commercial space sector.

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I.Unmanned Aircraft Systems

A. New Rules Remote ID B. Flight Over People, Over Vehicles, or at Night C. Continued Lack of Clarity on Airspace D. Newsworthy FAA Approvals E. COVID-19 and Use of Drones

II. Government Contracts

III.Space

A. First Private Human Space Launch B. Noteworthy Space Achievements in Countries Other than the United States C. Noteworthy Space Achievements by SpaceX D. NASAs Perseverance Rover, Past Updates, and Future Plans E. Record-Setting Private investment F. Satellite Internet Constellations G. Expected Impact of Biden Administration

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On December 28, 2020, the FAA released final rules regarding the Remote Identification of Unmanned Aircraft (Remote ID) and operations at night.[1] These rules, published in the Federal Register on January15, 2021,[2] require that certain unmanned aircraft (drones) broadcast their identification and location during operation. The final rules reflect the FAAs attempt to balance the competing interests in the federal airspace between commercial operators, hobbyists, law enforcement, and the general public.

The FAA received significant feedback on the Remote ID rules following its initial December31, 2019 Notice of Proposed Rulemaking (NPRM), accumulating over 53,000 comments from manufacturers, organizations, state and local governments, and a significant number of individual recreational pilots.[3] In a departure from the original proposal, under the final rule, drones must broadcast the required Remote ID information using radio frequency spectrum compatible with personal wireless devices rather than over the internet to a third-party service provider.[4] The FAA received substantial feedback criticizing the original proposal as expensive and requiring additional hardware and a data plan from a wireless carrier, depending on internet connectivity.[5] But with drones now required to broadcast Remote ID information over ranges that can be received by cell phones, members of law enforcement and the general public will be able to receive the broadcasts and determine flight information about drones flying in their vicinity without special receiving technology.[6]

Compliance with Remote ID Rules

The rules create three ways in which operators and manufacturers can comply with the Remote ID rules: (1) a drone containing Standard Remote ID, (2) a drone retrofitted with a broadcast module, and (3) a drone without Remote ID operating recreationally in specified areas.[7] The rules include an exception for drones weighing less than 0.55 pounds (250 grams), which are not subject to the Remote ID rules if flown recreationally.[8]

Standard Remote ID

The primary form of compliance is Standard Remote ID.[9] Standard Remote ID is built into a drone at the time of manufacturing and tested for compliance via FAA-approved methods. It requires the most robust broadcast, including the location of both the drone and its operator, along with certain flight parameters, a unique ID assigned to the drone and registered by the operator, and an emergency status indication. Additionally, Standard Remote ID drones must be configured to prevent takeoff if the Remote ID equipment is not functional.

Remote ID Broadcast Module

The second form of compliance involves the installation on a drone of a Remote ID broadcast module.[10] This allows drones not manufactured with Standard Remote ID, including those currently in use, to comply with the Remote ID rules. The broadcast modules transmission is similar to Standard Remote ID, except that it broadcasts the takeoff location rather than the location of the operator. Furthermore, drones outfitted with a broadcast module are not required to send an emergency status indication, and need not prevent the drone from taking off if the module is not functional. Unlike Standard Remote ID drones, those fitted with a Remote ID broadcast module are expressly limited to operation within visual line of sight.

Manufacturers should not rely on the Remote ID broadcast module moving forward. Starting eighteen months after the final rule becomes effective, manufacturers must meet the Remote ID standard in their production of drones. Restrictions on operation of noncompliant drones will take effect thirty months after the final rule becomes effective. As of now, the FAA has delayed implementation of the rule until April21, 2021 as part of the Biden administrations regulatory freeze.[11]

FAA-Recognized Identification Areas

Lastly, the new rules create FAA-Recognized Identification Areas (FRIAs) in which drones can be operated recreationally without complying with the Remote ID rules.[12] FRIAs are fixed locations where drones can be flown safely, thus preserving minimally regulated operations at hobbyist airfields, such as those maintained by the Academy of Model Aeronautics. In a departure from the proposed rules in the NPRM, which limited applicants to community-based organizations, the new rules expanded the list of potential FRIA applicants to include educational institutions.

Addressing Concerns Regarding Improper Use

The commercial drone industry has faced questions and concerns that drones will be operated in an unprofessional manner or used by malicious individuals to obtain data for nefarious purposes.[13] Law enforcement and government agencies have also shared concerns related to illegal operations, such as interference with manned aircraft.[14] The Remote ID rules will help address those concerns by allowing these organizations to identify the drone owner or determine if the drone is not equipped with Remote ID and not legally operating. Addressing these concerns will minimize some of the resistance the industry has faced. Further, Remote ID helps lay a foundation for an ecosystem in which tens of thousands of drones operate autonomously beyond visual line of sight on a daily basis. Although the current rules may be modified and more technology-developed, transmitting basic identification and location information will be a pillar of future large-scale autonomous operations. These rules are an important early step on the path to an integrated regime for regulating a rapidly growing body of unmanned aeronautical operations.

On December 28, 2020, the FAA released final rules impacting drone operations over people, over moving vehicles, or at night.[15] Prior to the new rules, Part107 of the FAA regulations required commercial drone operators to receive a waiver in order to fly over people, over moving vehicles, or at night. In early 2019, the FAA and the Department of Transportation shared an NPRM, proposing alterations to Part 107 to make the operation of small unmanned aircraft over people or at night legal, under certain circumstances, without a waiver. On January15, 2021, the final rule was published in the Federal Register.[16] The rule is scheduled to take effect on April21, 2021.[17]

Drone Operations Over People

The new law permits commercial drone operations over people under certain conditions based on four categories of drones operating under Part107. Category One, Two, and Four drones must be compliant with Remote ID rules discussed above to have sustained flight over open-air assemblies, but Category Three drones may never operate over open-air assemblies.

Category One is the most lenient category, consisting of drones that are both under 0.55pounds (250 grams) and lack any exposed rotating parts that would cause lacerations.[18] Due to the weight restrictions, the drones in this Category will most likely initially be limited to photography and videography drones, but these restrictions may result in innovation of new lightweight sensors for expanded operations within Category One.

Categories Two and Three cover drones greater than 0.55 pounds and less than 55pounds.[19] These categories allow drones to be flown over people only if the manufacturer has proven that a resulting injury to a person would be under a specified severity threshold. Category Two aircraft will need to demonstrate a certain injury threshold, and Category Three aircraft will have a higher injury threshold with additional operating limitations. Category Three drones can only operate over people (1) in a restricted access site in which all individuals on the ground have notice, or (2) without maintaining any sustained flight over people unless they are participating in the operations or protected by a structure.[20]

The new rules also created a fourth category that was not included under the proposed rules, but clarifies that specific drones for which the FAA has issued an airworthiness certificate under Part 21 can conduct operations over people unless prohibited under its operating limitations.[21]

Drone Operations Over Moving Vehicles

Although the proposed rule did not allow operations over moving vehicles, the final rule does allow such operations under two circumstances: (1) if in a restricted access site and the people in the vehicle are on notice, or (2) when the drone does not maintain sustained flight over moving vehicles.[22] This addition is a welcome change for all drone operators who no longer have to cancel, delay, or change an operation due to an unexpected vehicle or nearby traffic.

Drone Operations at Night

The rule also allows operations at night under two conditions: (1)the remote pilot in command must complete an updated initial knowledge test or online recurrent training, and (2)the drone must have proper anti-collision lighting that is visible for at least three statute miles.[23] Operators will be pleased with this change because it removes the need for nighttime waivers and delays associated with obtaining such waivers.

Looking Ahead

The Part 107 changes are steps in the right direction for increased commercial use of drones. Operating over people, moving vehicles, and at night expands the applications and timing of operations available to commercial operators. The additions to the proposed rules, such as permitting operations over moving vehicles, are an indication that the FAA is listening to the drone community and working to advance this industry.

While new rules for Remote ID and operations over people, over moving vehicles, and at night are helpful to move the industry forward, they do not address the most challenging legal issue that remains for the commercial drone industry: control of low-altitude airspace. It remains unclear as to how much, if any, airspace is owned by private landowners and whether states and municipalities have any jurisdiction over low-altitude airspace. Furthermore, a legislative solution on this issue is increasingly improbable, and it will instead likely be decided by the courts years in the future.

In a nutshell, the confusion regarding low-altitude operations stems from the FAAs claim that it controls the airspace from the ground up and that the claim that it does not control all the airspace below 400 feet is a myth.[24] However, many local governments and property owners do not agree with the FAAs interpretation. While the FAA has jurisdiction over navigable airspace, many assert that the boundary of where that airspace ends and begins is far from clear.[25]

To date, this boundary has not been directly addressed by a court in the context of drones. The closest that federal courts have come to addressing this issue was in July 2016 when U.S. District Judge Jeffrey Meyer, of the District of Connecticut, questioned the FAAs position: [T]he FAA believes it has regulatory sovereignty over every cubic inch of outdoor air in the United States .... [T]hat ambition may be difficult to reconcile with the terms of the FAAs statute that refer to navigable airspace.[26] The dicta raised the question of where the FAAs authority begins, but noted that the case does not yet require an answer to that question.[27] In time a case will require such an answer.

The legal uncertainty surrounding low-altitude operations remains one of the most significant barriers to large-scale commercial operations, and it is likely to be one of the most important issues for the industry for years to come.

This past year saw several groundbreaking approvals of new uses for unmanned aircraft systems, specifically in operations beyond the visual line of sight and in the agricultural context. The industry also saw progress in setting airworthiness standards.

Beyond the Visual Line-of-Sight Approvals

Perhaps the most well-known approval occurred in August 2020, when, according to public filings, the FAA approved Amazons use of a fleet of Prime Air delivery drones, allowing the company to expand its unmanned package delivery operations.[28] The FAA issued this authorization under Part135 of its Unmanned Aircraft Systems regulations, which govern the use of drones beyond the visual line of sight (BVLOS) of the operator.[29] Although the Prime Air fleet is not yet fully scaled, this authorization enables the company to soon be able to deliver packages weighing five pounds or less in areas with relatively low population density.[30]

Further expanding the boundaries of BVLOS drone use, the FAA gave its first-ever approval of a companys use of automated drones without a human operator on site earlier this year.[31] In January 2021, the FAA authorized American Robotics, a Boston-based drone systems developer that specializes in operating in rugged environments, to begin such automated operations.[32] Obtaining this approval required a four-year testing program in which the company ran up to ten automated drone flights per day.[33] While only beginning to be fully understood, the automated use of drones without the need for on-site human personnel could have enormous ramifications for the agricultural, energy, and infrastructure industries.[34]

Agricultural Use Approvals

The agricultural industry may experience additional aerospace innovation after the FAA approved the Iowa-based startup Rantizos use of drone swarms to spray crops.[35] The company received approval in July 2020 to operate three-drone swarms, which move in concert with one another with the help of one drone operator and one visual observer.[36] The approval will allow the company to cover between 40 and 60 acres of farmland per hour.[37]

Rantizo was not the only company to receive approval to operate drone swarms. In October 2020, the company DroneSeed obtained FAA approval to use five-drone swarms of heavy-lift drones beyond the visual line of sight for reforestation efforts in Arizona, California, Colorado, Montana, New Mexico, and Nevada.[38] Each of the companys drones can carry up to a 57-pound payload, and reports suggest that the company may focus its reforestation efforts on areas ravaged by wildfires.[39]

Creation of Airworthiness Standards

Lastly, in September 2020, the FAA opened for public comment its first-ever set of type-certification airworthiness standards relating to drones, with the goal of streamlining the certification of certain classes of drones.[40] Whereas the FAA has airworthiness standards in place for most types of manned aircraft, allowing companies seeking approval of such vehicles to avoid a cumbersome, case-by-case process, no such process previously existed for drones. The creation of a standard airworthiness certificate for drones as a class of aircraft could significantly shorten the drone approval process, potentially accelerating innovation in the aerospace industry.

As discussed in last years update, many expected the global COVID-19 pandemic to usher in a new era of drone applications. In the early months of the pandemic, governments began using drones in novel ways: spraying disinfectant across large areas, developing disease detection mechanisms, and even enforcing social distancing requirements. Though these initial reports of drone usage in the age of COVID-19 dealt mostly with disease control efforts, corporations soon shifted their focus to the socially distant environment, turning to drones to facilitate deliveries to consumers and medical providers alike and provide services in a safer way.

Consumer Deliveries

For years, corporations have been hoping to facilitate deliveries via drone, and the pandemic amplified consumer interest. With more and more people looking to avoid crowds and stay at home, demand for drone delivery of consumer goods increased, and many companies deployed their technology to facilitate deliveries via drone.

Wing (Alphabets drone delivery company) launched a pilot program in October 2019, partnering with several local retailers to deliver certain products to people in Christiansburg, Virginia.[41] Since the pandemic, it has expanded its program by adding new products and new retailers, and deliveries have more than doubled.[42]

In North Dakota, Flytrex, an airborne delivery service company, launched a program allowing customers to order from a selection of 200 Walmart items.[43] The two companies recently introduced a partnership in North Dakota for grocery deliveries.[44] The company also delivers snacks to golfers at Kings Walk course in North Dakota.[45]

In addition to consumer goods, food delivery via drone has also increased since the pandemic. In fact, Flytrex has begun testing drone delivery of food and drink items in North Carolina.[46] And in Alabama, the company Deuce Drone has partnered with some restaurants for drone doorstep delivery.[47]

As discussed above, in August 2020, Amazon received FAA approval under Part135 of FAA regulations to safely and efficiently deliver packages to customers.[48] This allows Amazon to transport property on small drones beyond the visual line of sight.[49] Amazon, which began testing drones in 2013, is continuing to test the technology and has not yet deployed drones at scale.[50]

Medical Supplies Deliveries

Drones also delivered medical supplies in 2020. In May, Zipline, a company that has been using drones to deliver blood in Rwanda since 2016, began delivering medical supplies and personal protective equipment via drones to a medical center in North Carolina.[51]

In November 2020, Wal-Mart received approval to deliver COVID-19 test kits to El Paso, Texas residents.[52] A few months later, Nevada-based Flirtey announced: that it has successfully conducted multiple deliveries of at-home COVID-19 test kits in Northern Nevada during the initial phase of its test program.[53] Drone delivery of COVID-19 test kits is more efficient and more convenient, and it reduces exposure risks.[54]

Remote Service Providers

Beyond deliveries, the pandemic also drove up demand for remote services as companies adapted to social distancing guidelines that made providing in-person services more difficult. Since the pandemic started, flights by construction-related companies are up 70%.[55] DroneDeploy, a startup that has a program that analyzes drone footage of farmers fields and helps make recommendations about when to apply pesticides has reported that these agriculture flights have tripled during the first several months of the pandemic.[56] The company also reported significant increases in flights using its energy app, which helps solar panel installers calculate where best to place the panels.[57]

Lasting Impact?

Though there has certainly been an expansion of drone services in the U.S., this expansion is not widespread. Many of the examples discussed above are limited to small geographic areas and it is still unclear when mass adoption will occur. While the pandemic appears to have pushed forward the adoption of drone delivery and service programs, it is unclear if that mentality will change after societies are no longer quarantined at home. Will there be as much of a demand for drone deliveries and services once there is no longer a pandemic-driven crisis?

Despite these uncertainties, many are optimistic about the future of drone deliveries. Technologies are improving, and most of the elements needed for the widespread adoption of drones are already available in the market.[58]

In this update, we summarize select recent government contracts decisions that involve companies in the aerospace and defense industry, as well as decisions that may be of interest to them, from the tribunals that hear government contracts disputes. These cases address a wide range of issues with which government contractors in the aerospace and defense industry should be familiar.

DFARS 252.227-7103(f) Does Not Prohibit Markings On Noncommercial Technical Data That Restrict Third-Party Rights

In The Boeing Co. v. Secy of the Air Force, 983 F.3d 1321 (Fed. Cir. 2020), the Federal Circuit considered whether Defense Federal Acquisition Regulation Supplement 252.227-7103(f) (DFARS 252.227-7103(f)) applies to legends that restrict only the rights of third parties but do not restrict the rights of the Government. Boeing applied a legend to its technical data that stated, NON-U.S. GOVERNMENT ENTITIES MAY USE AND DISCLOSE ONLY AS PERMITTED IN WRITING BY BOEING OR THE U.S. GOVERNMENT. The Government rejected Boeings data deliverables because the legend allegedly did not conform to DFARS 252.2277103(f), which stated that the contractor could only assert restrictions on the Governments rights, and specified the legends authorized under the contract. The Armed Services Board of Contract Appeals (ASBCA) decisions below found in favor of the Government. On appeal, Boeing argued that its legend conformed to the requirements of DFARS 252.227-7103(f) because the clause is applicable only to legends that assert restrictions on the Governments rights, and is silent on legends that assert restrictions on the rights of third parties. The Federal Circuit agreed with Boeing that DFARS 252.227-7103(f) applies only to legends that assert restrictions to the Governments rights in the data, and is silent on legends that restrict the rights of third parties. The Federal Circuit remanded the decision to the ASBCA to decide whether, as a matter of fact, Boeings legend asserted rights that restricted the Governments rights in the data on which the legend was included.

ASBCA Declines To Decide Whether Fly America Act Applies To Indirect Costs

In Lockheed Martin Corp., ASBCA No. 62377 (Jan.7, 2021), the ASBCA did not reach the question of whether the Fly America Act, 49 U.S.C.A. 40118, as implemented by Federal Acquisition Regulation 52.247-63, Preference for U.S.-Flag Air Carriers, applies to a contractors indirect costs because there was no live dispute between the parties. FAR52.247-63, requires that all ...Government contractors and subcontractors use U.S.-flag air carriers for U.S. Government-financed international air transportation of personnel (and their personal effects) or property, to the extent that service by those carriers is available. It further requires that [i]f available, the Contractor, in performing work under this contract, shall use U.S.-flag carriers for international air transportation of personnel (and their personal effects) or property.

In 1997, Lockheed Martin Corporation and the Government entered into a memorandum of understanding (MOU) that the Fly America Act applied only to direct costs. However, in 2019, the corporate administrative contracting officer (CACO) withdrew the MOU on the purported basis that the MOU had misinterpreted FAR52.247-63, and issued a final decision asserting the interpretation that FAR52.247-63 applies to indirect costs. The ASBCA did not address the merits of the issue, finding that because Lockheed had not changed its practices as a result of the Governments withdrawal of the MOU or the CACOs final decision, there was no evidence that there was a live dispute to decide.

ASBCA Clarifies Types Of Activities That Are Not Unallowable Costs Under The FAR

In Raytheon Co. & Raytheon Missile Sys., ASBCA Nos. 59435 et al., (Feb.1, 2021), the ASBCA issued a lengthy decision on the allowability of various types of costs incurred by Raytheon Company and its business segment Raytheon Missile Systems (Raytheon). The ASBCA sustained all but $18,109 of Raytheons appeals of the Governments $11.8million claims. The types of costs addressed in the decision include costs for Raytheons Government relations group, costs for Raytheons corporate development group, and airfare costs.

Government Relations Costs. In 2007 and 2008, Raytheon included Government relations group costs as indirect costs in its incurred cost submissions, but withdrew a portion of those costs as unallowable lobbying costs in accordance with FAR31.205-22, Lobbying and political activity costs, which requires that contractors maintain adequate records to demonstrate that the certification of costs as being allowable or unallowablepursuant to this subsection complies with the requirements of this subsection. The Government disagreed with Raytheons practice and disallowed 100percent of the costs incurred by Raytheons Government relations group as expressly unallowable costs.

The ASBCA held that the Government had the burden to prove that the costs were expressly unallowable and that there was no basis to shift the burden to the contractor. The ASBCA further held that the Government did not meet its burden of proving that any of the Government relations costs included in Raytheons incurred costs submissions were unallowable, and that Raytheons method of removing unallowable lobbying costs was proper based on its disclosed accounting practice.

Corporate Development Costs. Raytheon included a portion of corporate development group costs as indirect costs in its incurred cost submission in 2007 and 2008, but withdrew a portion of the costs as unallowable organizational costs under FAR 32.205-27, Organization Costs. Raytheon implemented a bright line rule for its employees to determine the difference between costs for allowable activities under FAR 31.205-12, Economic Planning Costs, and FAR 31.205-38, Selling costs, and costs for unallowable activities under FAR 31.205-27. The Board found Raytheons corporate development employees kept track of their time in accordance with the bright line rule, that the allowable costs for the corporate development group were supported by documentation and credible witness testimony, and that the Defense Contract Management Agency (DCMA) did not meet its burden of proving that the corporate development costs were unallowable organization costs under FAR 31.205-27.

Airfare Costs. With respect to airfare costs, the ASBCA addressed two distinct issues: (1)whether the pre-Jan. 11, 2010 version of FAR 31.205-46(b) required Raytheon to take into account its corporate discounts in determining its allowable airfare; and (2) whether Raytheons policy of allowing business class travel for trans-oceanic flights in excess of 10 hours was reasonable and consistent with FAR 31.205-46(b). Prior to Jan.11, 2010, FAR31.205-46(b) stated:

Airfare costs in excess of the lowest customary standard, coach, or equivalent airfare offered during normal business hours are unallowable except when such accommodations require circuitous routing, require travel during unreasonable hours, excessively prolong travel, result in increased cost that would offset transportation savings, are not reasonably adequate for the physical or medical needs of the traveler, or are not reasonably available to meet mission requirements. However, in order for airfare costs in excess of the above standard airfare to be allowable, the applicable condition(s) set forth in this paragraph must be documented and justified.

(Emphasis added.) Effective Jan. 11, 2010, FAR 31.205-46(b) was amended to read: Airfare costs in excess of the lowest priced airfare available to the contractor during normal business hours are unallowable except (emphasis added).

The ASBCA concluded that prior to Jan. 11, 2010, contractors were not required to factor in any negotiated corporate discounts when determining the allowable amounts of airfare costs. The ASBCA also held that Raytheons travel policy documented and justified premium airfare, as required by FAR31.205-46(b), and that there is no requirement that premium airfare be documented and justified on an individual, flight-by-flight basis. Moreover, the ASBCA held that the CO acted within the scope of his authority when he determined that Raytheons travel policy complied with FAR31.205-46(b), and that his determination was binding on DCMA.

ASBCA Rules That Government Shares Liability for Contractors Underfunded Pension Plan

In Appeal of Northrop Grumman Corp., ASBCA No. 61775 (Oct.7, 2020), the ASBCA found that Northrop Grumman (NG)s valuation of a nonqualified defined benefits pension plan adopted in 2003 and frozen in 2014 was compliant with the Cost Accounting Standards despite the Governments objections to the companys valuation methodology. During the plans existence, NG allocated its costs to numerous government contracts, all of which included FAR 52.215-15, Pension Adjustments and Asset Reversions; FAR 52.230-2, Cost Accounting Standards; and FAR 52.233-1, Disputes.

When the plan was frozen, NG calculated that the plans liabilities exceeded its market value and requested that the Government pay its pro rata share to NG to true-up the plan under CAS 413. The Government argued, inter alia, that NGs reduction to its calculation of investment income to account for taxes on such income was non-compliant with CAS 412. Although the Board disagreed with NGs approach of reducing its investment rate of return by the marginal tax rate, the Board found that roughly the same outcome would have been achieved had NG accounted for taxes as an administrative expense. Because FAR 30.602(c)(1) provides that the Government should make no adjustment to the contract when there is no material cost difference due to the alleged CAS violation, the Board sustained NGs appeal and remanded to the parties to calculate the amount due and owing from the Government to NG.

Contractors REAs Were Not Contract Disputes Act (CDA) Claims Subject to the CDA Statute of Limitations

In Appeal of BAE Sys. Ordnance Sys., Inc., ASBCA No. 62416 (Feb. 10, 2021), the Board considered whether BAEs requests for equitable adjustment (REAs) constituted claims in light of the Federal Circuits recent decision in Hejran Hejrat Co. Ltd v. United States Army Corps of Engineers, 930 F.3d 1354 (Fed. Cir. 2019). In Hejran Hejrat, the Federal Circuit ruled that, under certain circumstances, an REA can actually constitute an implicit request for a final decision.

BAE submitted three REAs seeking reimbursement for state-issued fines it received as a result of environmental conditions at the plant. The contracting officer (CO) replied that he would entertain reimbursement of a portion of the state fines, but later issued a final determination rejecting the REAs entirely. Subsequently, BAE submitted a CDA claim to which the Government failed to respond. BAE appealed the deemed denial of its claim to the Board. The Army then moved to dismiss the appeal asserting that BAEs challenge to the COs decision was untimely because the REAs were, in fact, CDA claims, and the COs final determination upon them was thus a COs Final Decision. In denying the governments motion to dismiss the appeal for lack of jurisdiction as outside of the CDAs statute of limitations, the Board found that BAE did all that it could to keep its REAs from falling within the realm of being also considered CDA claims by carefully avoiding making a request explicit or implicit for a [contracting officer]s final decision. Therefore, the Board found that BAEs claims were timely filed and denied the governments motion to dismiss.

On November 15, 2020, the launch of SpaceXs Resilience marked the first NASA-certified commercial human spacecraft system.[59] The mission is the first of six crewed missions NASA and SpaceX plan to fly as part of the Commercial Crew Program, a program designed to provide safe, reliable, and cost-effective transportation to and from the International Space System from the United States.[60] The crew is comprised of four members, including three NASA astronauts and one member of the Japan Aerospace Exploration Agency.[61]

Resilience autonomously docked at the International Space Station on November 16, 2020 for a sixth-month stay, making it the longest space mission launched from the United States. During the mission, the crew is conducting various science and research investigations, including a study using chips with tissue that mimics the structure and function of human organs to understand the role of microgravity on human health and diseases.[62] The crew will also conduct various space walks, encounter several uncrewed spacecraft, and welcome crews from the Russian Soyuz vehicle and the next SpaceX Crew Dragon.[63] At the end of the mission, Resilience will autonomously undock and return to Earth.

Countries and private companies are racing to the Moon, Mars, and even asteroids. This space race involves countries that are both newcomers to space and those that seek a return to the unknown.

China

Change-5s Lunar Exploration Mission

Following the Change-4s successful lunar exploration mission in 2019,[64] China reached the Moon again in 2020. On November 23, 2020, Change-5 lifted off from Wenchang Space Launch Center on Hainan Island, China and went into the Moons orbit on November 28, 2020.[65] The descender craft separated from the orbiter on November 29, 2020 and landed on the Mons Rmker region of Oceanus Procellarum on December 1, 2020.[66] Once on the Moons surface, the lander system used a scoop and drill to dig up lunar samples.[67] After collection and storage, Change-5 made its return to Earth on December 16, 2020, landing in the Siziwang Banner grassland of the autonomous region of Inner Mongolia in northern China.[68] The successful mission retrieved about 1,731 g (61.1 oz.) of lunar samples.[69] Change-5 was Chinas first successful lunar sample return mission,[70] and the first in the world in over four decades since the Soviet Unions Luna-24 in 1976.[71]

The Change-5 venture demonstrates Chinas increasing capability in space, and is part of a broader effort under the Chinese National Space Administration Change Lunar Exploration Program.[72] The Change-6, expected to launch in 2023, will be Chinas next lunar sample-return mission.[73]

Tianwen-1 Reaches Marss Orbit

Chinas first independent interplanetary mission is well underway with the launch of the Tianwen-1 spacecraft on July 23, 2020.[74] After a 202-day, 295-million-mile journey through space, it arrived in orbit around Mars on February 10, 2021.[75] The first phase of Tianwen-1s mission is to circle Marss orbit and map the planets morphology and geology, while allowing the orbiter to find a secure landing zone.[76]

About three months after arrival into orbit, in May 2021, the crafts lander is expected to detach from its orbiter and descend onto Marss surface in a region known as Utopia Planitia.[77] Once on the surface, the lander will unveil a rover carrying a panoramic camera.[78] The solar-powered rover will also investigate surface soil characteristics for potential water-ice distribution with a ground-penetrating radar.[79] Tianwen-1 comes on the heels of several successful lunar missions for Chinas space program.[80]

Chinas Ambitious Plans for a Space Station

China has ambitious plans for a new space station.[81] Tianhe, the stations core module, is expected to launch sometime in 2021.[82] The module is 59 feet (18 meters) long, weighs about 24 tons (22 metric tons), and will provide living space and life support for astronauts and house the outposts power and propulsion elements.[83] Tianhes launch will be one of eleven total liftoffs that will be required to build the space station, which China wants to finish by the end of 2022.[84]

Chinas iSpace Fails to Reach Orbit During Second Attempt

Chinas iSpace, also known as Beijing Interstellar Glory Space Technology Ltd. (a different company than the Japanese lunar startup ispace) was the first Chinese private company to reach orbit when it successfully launched its Hyperbola-1 rocket on July 25, 2019.[85] On February 1, 2021, iSpaces four-stage Hyperbola-1 rocket failed to reach orbit during its second attempt to go to space.[86]

Despite its failed launch, iSpace is a prominent name in the Chinese private space industry, having raised $173 million in Series B funding for the Hyperbola rocket line. The company has indicated plans for a potential IPO and is in the midst of creating its Hyberbola-2 rocket.[87] Other private Chinese companies, including Galactic Energy, One Space, and Deep Blue Aerospace, are planning launches later this year.[88]

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Aerospace and Related Technologies Update Spring 2021 - Gibson Dunn