NASA Johnson Space Center
Oral History Project
Commercial Crew & Cargo Program Office
Edited Oral History Transcript
Interviewed by Rebecca Hackler
Washington, DC – 19 March 2013
Hackler: Today is March 19, 2013. This oral history interview is being
conducted with Mike Wholley at NASA Headquarters in Washington, DC,
for the Commercial Crew & Cargo Program Office History Project.
The interviewer is Rebecca Hackler, assisted by Rebecca Wright. Retired
Marine Brigadier General Michael Wholley is the General Counsel for
Thank you very much for your time this morning, and we’d like
to begin by asking you to share a brief background of your career
as a military and NASA attorney, and how you first became involved
in the project to apply NASA’s Other Transaction Authority [OTA]
to the commercial cargo project.
By way of background, I come from Massachusetts. I grew up there,
applied for an ROTC [Reserve Officers’ Training Corps] scholarship,
and got to Harvard [University, Cambridge, Massachusetts] on an ROTC
scholarship. I always wanted to fly fighters. My favorite cousin growing
up was a fighter pilot in the Korean War. He had his own little plane
at the local airport and he would take me up. It’s all I wanted
to do—fly fighters, get out, go back to Massachusetts, get into
I spent my first nine years in the U.S. Marine Corps flying [McDonnell
Douglas F-4] Phantoms. The last three of those years, I was on exchange
tour with the [British] Royal Air Force. They had just bought Phantoms
and wanted an air combat instructor, so I spent three years with them.
Then, God love the Marine Corps [Arlington, Virginia], they told me
I was coming back to fly a big desk at the Marine Corps Headquarters
and I said, “No, I think I’m going to go to law school.”
I got a call that they would send me to law school, so they sent me
to law school.
I ended up spending almost 31 years in the Marine Corps, and retired
as the JAG [Judge Advocate General] of the Marine Corps, back in 1996.
Because I was a scholarship baby and I really believed in education,
I got out of the Marine Corps and decided I didn’t want to practice
law. I ran a charity raising money for the sons and daughters of Marines,
particularly kids whose parents were killed or wounded on active duty,
for post-secondary education scholarships. That meant junior college,
college, beautician school, electrician school, whatever they wanted
to go to. Most of these kids were the first in their family to go
to college, because we were focused on the sons and daughters of our
enlisted men. We kept it so that we were helping those who really
needed an opportunity.
I did that for about eight years, and raising money is very difficult.
There are a lot of very good charities, and people give money to people
with good charities, so I was away from home a lot. It was very demanding.
I had friends that worked at NASA, and they would say to me, “Aren’t
you a little tired of being on the road? Why don’t you come
and work for NASA?” So, in 2004, for a bunch of reasons, I made
the decision that I was going to step away from the foundation. I’d
done, I think, a really good job raising a lot of money. We went from
less than $3 million to well over $30 million, and we were giving
out a lot of scholarships every year.
I decided it was time to make a change, and fortunately there was
a job open at NASA. It wasn’t the job I’m in now. I was
quite surprised when the General Counsel [Paul G. Pastorek], who I
had talked with on several occasions, said to me that he was leaving,
and that the then Administrator Sean O’Keefe decided he wanted
me to be the General Counsel. It was pretty stunning, since I hadn’t
practiced law in eight years. I was a volunteer General Counsel for
a couple of organizations, so I kept my hand in it, I kept my license
up. I came to NASA, hired by Sean O’Keefe. He left in February
of 2005 to go to LSU [Louisiana State University, Baton Rouge], then
Mike [Michael D.] Griffin came in [as NASA Administrator in April
There’s actually a connection here. Mike came in and I guess
it was about the first week or two when I was talking to him and he
said, “Look, part of our charter is to facilitate the development
of commercial space, so I’m going to dedicate $500 million to
try and jumpstart commercial space. I need you to figure out a way
that we can not have all the restrictions of government contracting
and government accounting principles and everything else. We have
this Other Transaction Authority. How can we do this so that we can
have people who put skin in the game?” Those were his words,
“I want the companies to put skin in the game. I want us to
support them, but I don’t want us to pay all the freight. They
have to put skin in the game.”
The best legal minds that I had here in that particular department,
which was the procurement/contracting/Other Transaction Authority
department, were my head of the Contracts [Contracts, Procurement
and Acquisition Integrity Practice] Group, Sumara Thompson-King, and
the Commercial [Commercial and Intellectual Property Law Practice]
Group, which is Courtney Bailey Graham, as well as some other lawyers.
Scott Barber and Karen [M.] Reilley—there were a number of extraordinarily
We noodled through this problem for the better part of six to eight
months, of how we could structure this. We came up with the way that
we could structure it where we would not be imposing requirements
on the companies; we actually would be giving them milestones. The
milestones required them to invest their funds and to show that they
had a business plan with the investors to carry them through, so that
we wouldn’t be carrying all the freight.
After we started doing that, the COTS [Commercial Orbital Transportation
Services] program was born through what was then called Exploration
Systems [Mission Directorate]. We put out Requests for Information,
RFIs, and then over the course of the next six to eight months met
with the companies, had financial people candle their bona fides,
their business plans, and then they made presentations. I think we
had somewhere in the neighborhood of 20 companies that initially responded.
They ranged from a guy with a project in his garage to the Boeings
[The Boeing Company] and the Lockheeds [Lockheed Martin].
Then of course there were the startups, and that was one of the things
that Mike was focused on, to get some new players in. There were a
couple that I should mention. One was Space Exploration Technologies
[Corp.], SpaceX. One was Rocketplane Kistler, that had a kind of start-stop,
start-stop history with NASA. Another one was SpaceDev [Inc.], a space
I was one of the advisors to the selection board, and I remember the
presentations. Remember, we only had $500 million. Lockheed and Boeing
basically said, “We could do this, but it would be a lot more
money than $500 million.” On the other hand, SpaceX, Rocketplane
Kistler, and SpaceDev came forward with programs and plans that looked
like they might work, and would require the government investment
but not the government paying for the whole thing. That worked pretty
well, and initially SpaceX and Rocketplane Kistler were chosen and
given milestones. As you probably know, at one point Rocketplane Kistler
fell off the back of the piano when they couldn’t raise the
money. We would give them delays and we would give them extensions,
and they just never quite got it done.
I have to share with you that because this was such a new way of doing
things, we were concerned that the—we don’t call them
losers—unsuccessful proposers would say, “Wait a minute,
wait a minute, wait a minute. This is a sham, you are buying goods
and services for the government and the law requires that if you’re
buying goods and services, you need to use a procurement vehicle,
a contract. You’re using Space Act Agreements for things they
weren’t meant to do.” We would say, “No, we’re
not buying goods and services. Our charter under our organic legislation,
the Space Act, is to promote commercial space, and that’s what
This is why we have not set “requirements,” because if
we were to set requirements, then it would be the government buying
and dictating the terms of something. We specifically didn’t
do that. We’ve been taken to the GAO [Government Accountability
Office], because the GAO has authority to look at contract protests.
The first time we were taken to the GAO, it was whether or not we
were abusing Space Act Agreements, and these were really contracts.
It was a very groundbreaking decision. GAO basically said, “No,
their Other Transaction Authority, the way they’re using it
with milestones, not forcing requirements on the company, not focused
on goods and services for the government, even though long-term the
government may want to use these services, that’s not what the
stated purpose of COTS is.” We prevailed, which was wonderful.
At some point past that, Rocketplane Kistler was having trouble raising
their capital, and so they fell off the back of the piano. We had
another opening, and Orbital Sciences Corporation eventually prevailed
in that one. That’s how we ended up with two providers for the
Commercial Orbital Transportation System.
When COTS was originally conceived, there were four things we were
looking for: unpressurized cargo up, pressurized cargo up, pressurized
cargo down, and crew. COTS [Capabilities] A, B, C, and D. We were
really focused on COTS A, B, and C because that was what we were looking
at, at that time. Commercial crew was going to be sometime in the
future. Other than the fact that we got challenged in GAO once, and
then challenged again on the Commercial Resupply [Services] contract
by PlanetSpace, who was an unsuccessful offeror, it’s gone amazingly
The proof is in the pudding. SpaceX has had a pretty darn good run
so far, and Orbital [Sciences] is headquartered out of Dulles [Virginia],
and they’re going to be launching from MARS, the Mid-Atlantic
Regional Spaceport. They’re due I think sometime in April to
test fire. Hopefully they’ll be going up to the ISS [International
Space Station] with some cargo soon, too.
The original purpose of COTS was to foster an industry to get America
back in the launch business, and get NASA back into the space exploration
business by being able to turn over the routine tasks—and I
put “routine” in quotation marks—of bringing supplies
up and back from the Space Station, and eventually bringing crew up
and back to the Space Station, which is low-Earth orbit. Get that
taken care of by a commercial entity, which would do two things. We
were hoping it would be less expensive, and we were hoping that it
would then free NASA up to concentrate on the things that only government
can do, which is essentially space exploration and reaching beyond
low-Earth orbit. So far, touch wood, it’s working out.
I’m not a propeller head—I was a history and literature
major as an undergraduate—but I’ve learned an awful lot
while I’m here, and the one thing I’ve really learned
is that in spite of the science fiction movies and everything else,
getting to even low-Earth orbit is very, very difficult. Getting back
is even more difficult.
Once a year we have a General Counsel’s gathering and training
session, continuing legal education session. We had a session at the
time when SpaceX successfully made their first trip to the International
Space Station. We had a number of people in the session, and I got
up and said to everybody, “I hope you realize what a tremendous
hand you had in this great move forward under this other transaction
authority—just the way you noodled through it, didn’t
give up, sustained the challenges of GAO, and just kept working with
our clients to help them get where they needed to be.”
That’s what our focus is. We’re supposed to be force multipliers.
We are supposed to be the folks who listen to our clients. We hear
what their issues are, and we find a way around them. We find a way
to help them get their mission done. That was the fun part of COTS.
When you were developing Space Act Agreements and looking into how
to apply NASA’s Other Transaction Authority, did you have any
experience using that authority from your military background? Or
was it completely new to you?
No. First of all, my military background, I had very little procurement
experience. My Master’s in law was in environmental and land
use, and I really didn’t have much procurement—put that
down as less than .05 percent of my time as an attorney, up until
that point, had been dealing with anything to do with procurement.
NASA has an extraordinarily talented staff of procurement attorneys.
Amy [V. Xenofos] is one. Sumara is the queen of the procurement world,
and she is extraordinarily bright. We had others, like Karen, Scott
Barber—I hate to give names and leave someone out—Vince
[Vincent A.] Salgado defended our actions at the GAO, just a fabulous
litigator. They’re all still here and they’re all very
proud of what they were able to do, as hopefully the Agency is as
There have been times when certain factions within NASA want to have
more control over what the commercial companies are doing, and we
have to say, “Back off,” because we prevailed in these
challenges precisely because we said, “This is OTA, Other Transaction
Authority. These are not contracts, we are not setting requirements
on these folks. We’re just giving them milestones. If they meet
the milestones, we contribute payment and we set the next milestone.”
If we start to set requirements, then it starts to look like a contract
and we could probably be hauled back into court or the GAO.
When this happens—and there are some pretty senior people who
want to get more of their hands on how this is being done—I
explain to them I’m not being wooden headed, but we can get
tied up for two or three years in court trying to resolve these, and
in the interim, the program’s not moving forward. We can’t
have that happen. Although I can see their teeth clenching sometimes
because they really do want to have more control, we’ve got
to back off and keep these as OTAs.
That’s different from the Commercial Resupply [Services] contracts
that we have with Orbital and with SpaceX. Those are contracts, so
we can set requirements. The interface between the commercial resupply
contracts and the Commercial Orbital Transportation System, sometimes
the lines get a little bit blurred. There’s no doubt that because
of the contract money, there’s been some help in giving companies
the financial resources to meet the COTS milestones.
About how many attorneys did you have altogether helping put this
together? It sounds like there was quite a team.
There was. There were a couple of principal attorneys—Sumara
was guiding, Scott Barber was guiding, Karen Reilley is just fantastic,
Vince Salgado was basically the gunslinger—and then there was
Amy, and then there were the folks down at Johnson [Space Center].
Who touched it? Probably in the neighborhood of 15 to 20. Who worked
on it pretty intently? Probably three or four.
I was wondering if you could describe in a little more detail some
of those GAO protests and how you defended the use of the Space Act
Agreement, as opposed to a contract.
It basically came down to, “Did we have the authority to do
what we were doing?” GAO has authority to handle protests on
government contracts. The first question for GAO, the first issue
we raised to them, was, “You don’t have jurisdiction to
decide this because this isn’t a contract.” Then we had
to write our brief to convince them that we had the authority to do
what we were doing under the Other Transaction Authority.
Here are all the reasons why it wasn’t a contract. We weren’t
controlling. We weren’t buying goods or services for the government.
We were merely setting milestones, we weren’t setting requirements.
The companies were putting their own money in. Tell me a contract
where the company’s putting their own money in, I don’t
think there are any of those. We had all these reasons, and I thought
we had a good argument. I was delighted to see GAO thought so as well,
and they basically said, “We don’t have jurisdiction over
this because it’s not a contract.”
In addition to GAO and federal offices, the commercial companies were
obviously a major player. How did you cooperate with them to make
the Space Act Agreement friendly to their terms so that they would
be willing to participate in this new endeavor?
I think people who are forward looking, and I truly believe this,
can see a couple of things. If you look backwards, you can say we’ve
lived off the Apollo era for the last 50 years, and we’ve reached
the knee of the curve. We have to make a decision. Having reached
the knee of the curve, do we start a gradual decline? Or do we reach
the knee of the curve and say, “Okay, there can be a space economy.”
There should be a space economy. That will be a booming business in
the future, for any one of a number of reasons, whether it’s
medicine, manufacturing, capturing minerals that are out there, asteroids
that are out there. For any one of a number of reasons, you have to
have some belief. I joke with people sometimes that in the 1800s the
big thing for wealthy people to do was have racehorses. Then, at the
turn of the 20th century, the big things were racing yachts. The big
thing in the ’50s probably were polo ponies.
The big thing for really wealthy people for the last 20 years has
been space. Some of these folks are visionary. You get an Elon Musk
[SpaceX founder and CEO (Chief Executive Officer)] or you get a [David
W.] Thompson [Orbital founder and CEO], or you get a Jeff [Jeffrey
P.] Bezos [Amazon.com and Blue Origin founder]. People like that,
I think they want to be part of something that will make a difference,
and they do have vision.
A lot of folks at NASA, Bill [William H.] Gerstenmaier [NASA Associate
Administrator for Human Exploration and Operations] and his whole
crew, these folks I think can see that we can’t stay on the
knee of the curve. We have got to step up and start going to the next
level because that’s what America does. Technologically, that’s
what we have to do. I tell folks I don’t want to worry about
whether China and India are going to be outsourcing jobs to my grandchildren
or not. I want us to be still in the number one position, and we need
to do that by doing what America does best, which is innovate and
inspire people to take risks with their capital.
That’s the biggest difference, I think, between us and Europe
and other nations. We have citizens who are willing to take risks
with their capital. They just have to be encouraged, whether it’s
through tax programs that give them, quote, “subsidies,”
or whether it’s through an organization like NASA saying, “Hey,
part of our job is to help you innovate. We’re not going to
tell you exactly how to do it. We’re going to tell you pretty
much where we think we need to end up, and we might be an anchor tenant
some day in the future, but that’s not what we’re going
to talk about now. What we’re going to talk about now is how
can we help you achieve your vision of a viable commercial space industry?”
That’s what we were doing with the OTA.
I have to share with you, as a sort of sideline, do you know where
our Other Transaction Authority comes from? The guy who wrote the
[National Aeronautics and] Space Act, who was just incredible, was
a very young guy. This was back in 1957, ’58. [Paul G.] Dembling.
I had the opportunity a couple of times to talk to him, and he told
a story which I’m sure is true. He was a young attorney and
he’d only been practicing for a few years. The Russians had
launched Sputnik [in 1957], and there was panic in America. We did
have a military space agency, but President [Dwight D.] Eisenhower
said, “I need a civil space agency.”
Mr. Dembling was tasked with writing the Space Act, and he sat down
and did a lot of research and he wrote it. He told me, “I did
the best job I could. I read everything, but I knew in the final analysis
there might have been something I missed. So I sat down and I said,
‘Well, how can I cover that?’ I can cover that by saying,
‘And NASA can do any other agreement, arrangement, whatever
it needs to do to fulfill its mission.’” That became the
Other Transaction Authority. You know how Sherwin-Williams [Company]
paint covers the world? He basically said, “If I’ve forgotten
something, use this.”
That’s a really interesting part of how that was put together.
God bless him, God rest his soul. He was fascinating to talk to. He
said, “I sat there, and I thought I probably missed something.
Now, what can I put in that will let them do whatever they need to
do?” Back then, in ’58, the whole nation was roiled. It
was still the Cold War, the Russians had a Sputnik, we could hear
it, beep-beep-beeping. Those who were alive at that time can remember
being taught to get under our little school desks and hunker down,
like that was going to protect you from an atomic weapon. In any event,
that was the climate of fear in the country, so getting a civil space
agency stood up and running was very important. Paul came up with
the Other Transaction Authority stuff. Who knew, right? Who knew?
You talked about the government’s role in encouraging innovation
and industry, and not every company that starts up is lucky enough
to succeed. That was the case with RpK [Rocketplane Kistler], as you
mentioned. I was wondering if you could talk a little bit more in
detail about their termination. What kind of discussions took place
That would have been on the program level. Because these weren’t
contracts, they were just milestones and agreements, if they failed
to meet a milestone it was over. It was a pretty straightforward process.
We pay you for milestones, we’re going to give you an extension
to try to meet that milestone. Their biggest problem was they couldn’t
raise the capital. SpaceDev has now morphed into Sierra Nevada [Corporation,
acquired SpaceDev in 2008].
Frankly, as I sat in on all the presentations, I thought SpaceDev,
the first time I heard it, was really exciting. A variant of the Dream
Chaser [spaceplane based on the NASA HL-20] stuck on top of a rocket,
and Mark [N.] Sirangelo was a very, very good presenter. I sat there
pretty impressed. I was impressed by SpaceX and I was impressed by
SpaceDev, and RpK had a program with some experience. It truly did
range from the guys who were working on something in their garage
to the Lockheeds, but the real innovators—the SpaceX, the SpaceDev,
the RpKs—we gave them a chance to succeed.
Mike Griffin dangled $485 million. Part of the problem was the big
companies said, “We can do it but we need all that money.”
He said, “Wait a minute, that’s not what I’m trying
to do. I’m trying to foster an industry, and that means I need
to have two or three that I can support through this. I can’t
give all the money to one that’s already doing this by and large.”
Let’s just say one could have thought that there was an assumption
on the part of the big players that, “We know how to do this,
and these startups, they’re not going to be players.”
But they were players and they had solid plans. We had a venture capitalist
who was candling these things. We had a lot of help. The presentations
were excellent, and I considered it one of the highlights of my time
here, to sit in on that and listen to what the future was going to
Did you work with Alan Marty, or did you have other venture capitalists
The guy I’m thinking of begins with a V.
There’s a Valin [B.] Thorn, but he wasn’t a venture capitalist.
He was a part of the COTS team [Commercial Crew and Cargo Deputy Program
Valin Thorn, yes. He candled the business plans for us. He did a good
job. They all did. They were enthusiastic about it, and the companies
were enthusiastic. The briefs were fabulous. You can say sometimes,
“My slide deck is always going to look better than your actual
rocket,” but the bottom line is these folks had put a lot of
effort into it. It was just great to see that we were able to pull
this off and help some companies what we’re now seeing, which
is viable transportation systems for cargo at least, and I don’t
think crew’s going to be that far behind.
After RpK’s termination, were there any lessons learned from
that that you applied to the next round to be able to help companies
develop their technologies?
I think the program people would be better able to answer that. In
terms of the legal framework, we had the legal framework. In terms
of the practicalities of operating and how you select and how you
set up the milestones and stuff, that’s more on the programmatic
The Space Act Agreements didn’t have a lot of changes?
No, it was well begun as first done. We spent a lot of time setting
it up the current way, so that there wasn’t a whole lot of noodling
to do with the process. Some of the things that were difficult—because
we were going to be giving $500 million to these folks, there were
real concerns about what’s going to happen to the intellectual
property, what are going to be the government’s march-in rights?
If we’ve given someone $180 million and they’re bending
metal and they have something and it’s almost viable, but they
just go belly up, what is the government going to get? Are we going
to have march-in rights to take this over and try to find someone
who can bring it to the next level and help us make the milestone?
Courtney Graham and Sumara, they worked those issues, and it was pretty
impressive—the patent and intellectual property people, the
This whole time, as they laid this out, they had to make sure that
they did not make this look like a contract because it wasn’t.
We knew that we could get tied up in protests if we didn’t do
it right. That was the real motivator for getting it right. That,
and the fact that this was groundbreaking, exciting work for the folks
in procurement and intellectual property here in NASA.
Candidly, other than being a huge cheerleader for this, noodling through
some of the practical stuff, the real intellectual horsepower was
the procurement and the intellectual property people. They’re
the ones who put it together. Couldn’t have been prouder. They
won the Group Legal Award for the year, and deservedly so.
In fiscal year 2011, the COTS budget was augmented. Were you aware
of how that was enacted, or how the milestones were executed?
In 2009, there was some ARRA money, American Recovery [and Reinvestment]
Act [stimulus] money. I think it was in the order of $50 million,
and the next year, there was some more money. At the same time we
were starting to move towards CCDev, Commercial Crew Development,
because we needed it. We did the same kind of set up again, Space
Act Agreements with milestones.
This is again where it became very challenging because a lot of internal
people said, “We don’t mind you flying t-shirts and water
up without us seeing how this is done, but we want to be there every
step of the way on these things to watch how they’re putting
this [crew development] together.” I said, “You can’t
do that under the Space Act agreement.”
I get where they’re coming from. The ASAP [Aerospace Safety
Advisory Panel], Joe [Joseph W.] Dyer, a friend of long standing—I
don’t have old friends, I just have friends of long standing—was
a naval aviator as well. He said to me, “The real issue, Mike,
is when do we grade their homework? If we grade it after they’ve
finished the test and handed it in, and there’s no way we can
change it, that’s not good.” We are now working again
to try and Solomonically find a way forward. That’s what the
[Certification] Products Contract [awarded in December 2012] is about.
Because it’s a contract, we can pay for data and insight, but
that’s separate from Commercial Crew Development, which is also
separate from CCiCap [Commercial Crew integrated Capability], but
these are all subtly interrelated. At the same time we have to walk
that thin line to make sure that the unsuccessful offerors don’t
say, “Time out, this is all just a ruse to have a government
contract.” That’s not what it is. It’s one of NASA’s
organic legislative mandates to help facilitate commercial space.
If, at the end of facilitating commercial space, there’s something
in it for NASA, okay, but that’s a byproduct.
As you gain more experience using Space Act Agreements, how has their
use in NASA evolved over time? How do you see them being applied in
the future, to other programs, for the same kind of development?
I think this was groundbreaking because this is the first time, to
my knowledge, that we had funded Space Act Agreements. Courtney’s
got the best presentation for this. We have reimbursable and nonreimbursable
[Space Act Agreements]. Reimbursable was the company got something
out of it, we got something out of it, and we sort of cross-paid.
Unfunded Space Act agreements, we didn’t pay anything. We might
let them work with us and we got some intellectual property rights,
or some ability to use what they developed.
This was a funded Space Act Agreement, and this is what bothered some
of our stakeholders. We were giving the people’s money to basically
companies that had a dream, and what was the government getting in
return? For our stakeholders who didn’t like that—and
there’s still a number of them, I might add—that’s
a very difficult question.
There are folks up on the [Capitol] Hill who wanted us to immediately
go to contracts, but the problem with going to a contract is we don’t
have the money, number one. Number two, we don’t have all the
requirements. Writing all the requirements that we want in the contract
would be extraordinarily expensive, and companies have a lot of change
orders. As soon as you say, “Now that I see it, I really need
it this way,” they go, “Oh, I can do that, open your wallet.
Give me the paper, and we’ll start putting zeros after it.”
By doing it with Space Act Agreements to help them develop the commercial
space industry—on the one hand, it has been much more economical.
On another hand, it’s been a blessing because we don’t
have the money. You can’t sign a contract if you don’t
have the money set aside to pay it and its termination costs. We don’t
have it. We don’t have a budget that big. So, fiscal reasons
compelled us to do Space Act Agreements as we moved forward. There
are real fiscal reasons why we just can’t do it.
We’re trying to keep competition alive. Could we have picked
a Boeing or a Lockheed? I suppose. Boeing and Lockheed ran [Space]
Shuttles and Atlas Vs [rockets]. Yes, we could have done that, but
is that going to develop a commercial space industry? Or is it just
going to be the same folks, the same guy always seems to win the contest?
We really did want to encourage innovation, and the Space Act was
the way to do that, the Space Act Agreements. Now that we’ve
set the precedent for funded Space Act Agreements, going forward,
there may well be in the future times where we say, “We need
this. It’s in our mandate to do it because it fosters commercial
space, it fosters American technological advancement, but we just
need to have innovators do this, so let’s do some funded Space
I think the space technology folks are doing it with grants now. There
are grants, cooperative agreements—there are things other than
contracts. The funny part is, because Space Act Agreements were getting
all the play—there’s an old expression, when the only
tool you have is a hammer, every problem looks like a nail. Our clients
come to us and say, “I want to do this. I need a Space Act Agreement.”
No, tell us what you want to do and let us find the best vehicle to
do it. It may be a cooperative agreement, it may be a grant, it may
be a procurement contract, but don’t limit yourself to Space
This is something you want to talk Courtney about because she’s
got oversight of it. We have a very, very extensive Space Act Agreement
Guide that goes into how to do it, why to do it, what the requirements
are, in terms of when you can and cannot use it. That’s her
group that does it. There’s a lot of interface between the commercial
law group and the procurement group. They work very closely together
to make sure that we’re not trying to do a Space Act Agreement
or cooperative agreement which should have been done with a contract,
and vice versa.
I’d like to ask Rebecca Wright if she has any questions she’d
like to add.
I have a few. In those first discussions with Mike Griffin, why do
you think that he was so propelled to move forward and push this as
part of his Administration?
First of all, he’s an innovator, and he is a very forward thinker.
He’s been around this business. I got to really know and appreciate
Mike for not only his brilliant mind, but the dedicated public servant
that he is. He took a huge pay cut to come here and be Administrator,
but he did it because he truly believed that it was the right thing
to do for his country. He noodled through how he thought it should
be done—incentive payments, where the government doesn’t
own the intellectual property—but at the same time he recognized
that unless we came up with a scheme that our stakeholders on the
Hill would say, “Yes, we understand you’ve got to develop
it in such a way. You have $500 million of taxpayer money, you better
use it correctly.”
That was the real challenge. He knew where he wanted to be, he just
needed us to help design the pathway to get there that would keep
everybody relatively happy. Again, there are unhappy people at NASA
because they don’t have what they consider to be the requisite
insight. There are unhappy people up on the Hill because they don’t
think that the government’s getting what it’s paying for.
To be honest with you, in the grand scheme of things and how this
can end up helping our country, this is a pittance, a mere pittance.
People look at our budget and they can’t believe how little
it is, and then they can’t believe we’re spending it in
space. I think they believe we used to fly up to low-Earth orbit,
open the Shuttle [payload] bay doors, and let the money blow around.
We spend it on Earth. We spend it developing the technology, and impacting
students, trying to inspire them to see the future that they can have.
When I got Griffin’s name as one of the chief people, I did
what I always do, as much research as I could do into him. I read
all his speeches, read all his testimony, read about his background.
I called my folks together, and I said, “When he comes in here,
things are going to change because he is very focused on commercial
space, and we’re not going to be doing things the same way we
used to do them. I don’t know quite what he’s going to
want, but I know it’s not going to be the same old thing.”
Sure enough, half a billion dollars. He’s saying, “Go
figure out how to do this.” We just provide the framework. It’s
the real inspirational thinkers and the great NASA team, Alan [J.]
Lindenmoyer [Commercial Crew and Cargo Program Manager] and all those
folks down there at JSC who have been overseeing this and helping
to establish the milestones, and helping the companies move forward
and giving them as much help as we can. We want these folks to succeed,
we do not want them to fail.
Some people say, “Wow, they had milestones and they didn’t
make them.” I say, “What would you have us do?”
Just say, “Okay, you’re done?” What will the next
person we try to incentivize say? “No thanks, because halfway
across the river you’re going to bail out on me just because
I’m struggling a bit.” You can’t do that. That’s
where we are. I love working here and working issues like this.
I truly do believe that, as I’ve said to folks, I’m going
to be out at Vandenberg [Air Force Base, California] the first time
[SpaceX] launch the Falcon 9 Heavy [rocket]. May not be as close as
some people will want to be, but I do want to see it launch. I hope
I’m around to see the [NASA] SLS [Space Launch System] launch.
I’m going to go down and see the [Orion] EFT [Exploration Flight
Test] 1 go up. This is the future, and I feel blessed that the folks
I work with have had a chance to contribute to it in a meaningful
In the Vision for Space Exploration that Mr. O’Keefe was very
involved in—the last line of the commission report [President's
Commission on Implementation of United States Space Exploration Policy]
that was headed by [Edward C.] “Pete” Aldridge, said in
order to make this work, there had to be a lot of shifting in the
[NASA] culture. Can you share with us if you had people who wanted
to attempt to influence how you put this together in a way that it
wouldn’t work? Did you have people advocating setting it up
to fail, to keep the culture as it was?
I never got the impression they were setting it up to fail. I got
the impression that they saw that their role in it wouldn’t
be what they wanted it to be, where NASA had quality review boards,
and engineers checking engineers checking engineers checking engineers,
and program managers controlling every nickel and dime and being in
charge. “This is letting loose some of the stuff that only we
at NASA can do!”
There were and are, as you well know, huge skeptics. There’s
a feeling that, “I’ll never sign off on putting an astronaut
that I can’t honestly say has been done exactly the way it should
have been done, and I can’t do that unless I’m watching
them screw in every screw and bolt every bolt.” NASA’s
fantastic, but have you been able to tour the facilities of any of
these other companies?
We did visit SpaceX in Hawthorne.
Have you been down to their facility either out at Vandenberg or down
at [NASA] Kennedy Space Center [Florida]?
No, not yet.
You figure out, it comes as no surprise to me in my advanced age,
that there are a lot of people out there with really, really good
ideas, and you don’t have to do things that way because we’ve
always done them that way. It really is innovation. There are only
three sovereign nations that have managed to put a man in orbit, and
one commercial company has managed to send a rocket ship up, orbit
the earth, and recover it. That’s pretty phenomenal.
You made the comment that GAO doesn’t have jurisdiction because
these were not contracts. Who does?
Interesting you should ask that because there are people on the Hill
that don’t like the fact that we’re using Space Act Agreements
and want us to move to contracts. First part of the answer—we
have an ombudsman here at Headquarters who will intervene on behalf
of companies that feel they haven’t been treated properly during
some of the processes. He’s had to do that in one instance,
with ATK [Alliant Techsystems, Inc.].
There are a number of folks on the Hill—I hope this doesn’t
come to pass—who are concerned that there doesn’t seem
to be any oversight of Space Act Agreements, and so they’ve
asked for every Space Act Agreement that’s been signed in the
last ten years. There’s a difference between what we used to
do, which was reimbursable Space Act Agreements or nonreimbursable
Space Act Agreements, and the innovative approach for this, which
is a funded Space Act Agreement. There’s been some talk at the
staff level about, “We’re going to have to put legislation
in to maybe give GAO oversight over this.” I’m thinking,
“Please don’t.” The law of unintended consequences
is sure to rear its ugly head. Please don’t. We’re doing
what we need to do just fine now, but I don’t know what the
future is going to hold.
I think if we were committing process foul after process foul, they’d
be justified in saying, “Wait a minute, where are your overseers?
In order to exercise oversight, we have to have somebody looking at
what you’re doing.” You can tie us up in federal court,
as well. You can try and craft an argument that you have a claim against
the government for your bid costs. There are a number of ways we can
be challenged. So far, because we frankly have done this very, very
cautiously—it’s been cautious innovation on the legal
front. We didn’t take a step unless we were pretty sure that
we could defend everything we were doing.
You mentioned you were an advisor to the selection committee, and
also that part of what you’ve learned is a good desire to foster
startup companies, but Orbital [Sciences] didn’t seem to fall
into that category.
Right, yes. In terms of crew, it certainly would be new for them.
They’ve been launching payloads, but they haven’t been
launching crew. Nobody’s been launching crew except NASA through
Boeing and Lockheed, basically.
Do you feel like there was more of a decision made on the technical
expertise compared to their business plan expertise?
It was a combination of ingredients. We’ve seen guys that seemed
to have very interesting and probably workable technical plans, but
there was no way that they had the financial backing to do it. If
we selected them, we’d have been throwing money at something
that didn’t have sufficient backing to make it viable.
I do remember being impressed by Mark Sirangelo and SpaceDev, by Elon
Musk and SpaceX, by Rocketplane Kistler—this was the first round,
back in 2006—being impressed at both the business case and having
the impression that the big companies who proposed basically said,
“Yes, we can do it, but we need all the money you’ve got
and then some.”
Did you try not to chuckle?
Yes, in a sense. If you keep focused on what we’re really trying
to do, get competition, get innovation, get an industry built, it
takes more than one giant to do that. It takes a leap of faith, but
faith based on empirical evidence that these folks know what they’re
doing and they have the backing. We’re just going to be providing
sufficient help to help them get done what we think they can do. I
don’t know how else to answer it. I don’t think it was,
“Hey, we’ve only got $485 million to give out, let’s
not give it to one big company.”
I think if they had walked in with an innovative solution—we
focused on COTS A, B, and C. The only one, at that point, that was
even proposing COTS D that was an innovator was SpaceX. He [Musk]
had this vision. I used to say that vision without resources is hallucination.
A lot of the folks that walked in there had vision, but they didn’t
have the resources. He seemed to have both. Sirangelo had both. Rocketplane
Kistler, we thought, because they were to a great extent established
and they had a sugar daddy [investor] who thought they would work—they
had a good approach, but that didn’t work out.
Here’s something interesting. If we’d had a contract with
them, we’d have had to terminate for convenience. Then we’d
have had termination liability, we would have had money going—it
would have been just a disaster. But because these aren’t contracts,
we can make a decision. If you don’t meet a milestone, we can
give you an extension, we can give you another extension. If we think
you’re not making progress, we can say adios. This was a pretty
good legal plan we put together.
My last question is about RpK, since you stopped on that. I was reading
that they felt they would have been able to get other investors if
NASA could give some kind of commitment that they were going to buy
If we gave a commitment that we were going to buy the services, what
did we just turn it into? You can’t do that. They knew we were
going to be buying commercial services at some point, but we couldn’t
say we were going to be buying them. They knew that at some point
NASA’s plan was to turn over supplying the [International] Space
Station, initially for cargo and then for crew, to the commercial
industry, but we certainly couldn’t say to RpK, “You’re
going to be our choice.” First of all, the Competition in Contracting
Act [of 1984] wouldn’t allow that, and that would be a contract.
There were lots of reasons. They can grouse all they want. They had
their chance, and for any one of the number of reasons they didn’t
get it together.
I did think of one more because you mentioned it—again, when
Mike Griffin came in and you talked about it, did you feel that the
primary reason was to foster this commercial private sector for space
industry, or was this a primary way to resupply the ISS?
When Mike Griffin first came in, candidly, my impression was—I
never asked him directly, but there probably were people who did—he
would have shut down the [International] Space Station in a New York
minute to get us back into the exploration business. After traveling
overseas and talking to some of our allies, you may remember that
the number of Station missions were cut way back. I think we were
going to have 40 or 45 launches, it got cut back to 28, and the question
was, “Can we finish the construction of the [International]
Space Station with that number of missions?”
God love Gerst [Gerstenmaier] and his folks, and all the folks down
at JSC. These guys noodled their way through and got it, and even
got the spares up there on the last [Shuttle] flight. It was pretty
amazing, really. I never said to him, “Mike, do you think this
is a huge rat hole we’re just throwing money down?” Mike
came to realize the value of the Station, but his focus has always
been—when you read Mike’s speeches and when you talk to
him, on the macro level—the survival of the human race. On the
intermediate range, the exploitation of space for its resources. That
doesn’t mean going back and forth to the [International] Space
I think it was about a year and a half ago, in a speech he gave in
South Africa at the IAC [International Astronautical Conference],
he talked about the business plan for setting up a Moon base. He said,
“What governments should do is say to these companies, ‘Okay,
we’re going to need water, we’re going to need power.
You guys deliver it and we promise we’ll pay for it, and we’re
going to set up a moon base and stuff as stepping stone to further
Mike was about exploration, not about the ISS. He came to appreciate
what the ISS offered, in terms of a laboratory to look at all the
human factors involved that we’re going to need to solve in
space exploration. He’d probably rather be doing it on a Moon
base, but that’s not in the cards with the budget that we have.
I think he was focused on a grander vision than just going back and
forth to the Space Station. That’s what the Constellation [Program]
was all about.
You’ve mentioned a few times the Commercial Resupply Services
contract that was the follow on to COTS—did you have any involvement
in how that was selected?
Could you talk about that?
The better person on that would be Karen or Sumara. You’ll love
Karen, you’ll love Sumara, and you’ll love Courtney. These
are three of the finest lawyers I’ve ever worked with in 30
years of practicing law. They’re really good. I’d like
to tell you that that’s been my only focus, but I have other
things as well, and I have so much trust in them. They’d be
able to give you more accurate answers than I could. I stayed abreast
of it but they were really at the day to day meetings.
What was the biggest challenge for you in setting up the legal framework
to make the COTS program a success?
For me there was a really steep learning curve because I came to NASA
in July of 2004. In February of 2005, I’m still trying to figure
out which light switch turned on which light. Mike comes in and says,
“This is where we want to go.” They had done a wonderful
job of getting me up to speed on procurements and learning about the
Other Transaction Authority, but in terms of depths of knowledge,
Sumara’s been doing this for 30 years, Karen’s been in
it for 20-plus. These are people with just fabulous minds and the
flexibility to look and say, “Let’s not beat our wings
against the side of a cage, let’s go around the cage.”
The one thing I really love about this organization is that we task
organize. We needed international people to talk about the international
side of the ISS, we needed the commercial law people, we needed the
patent law people, we needed the general law people for a lot of the
ancillary things—who can we take money to, how can we get money,
the fiscal law implications of all this—and we needed the procurement
attorneys. It was really a team effort, and we had to have them here
at Headquarters and down at Johnson, get everybody on the same sheet
of music. In the final analysis, I couldn’t be more proud of
what they came up with. It’s worked.
Are there any final thoughts or areas you’d like to discuss
before we close out today’s session?
Not really, other than whatever’s been done has been done as
a team effort, and I’m just a coach on the bench. That’s
probably not a good analogy because you have to actually know what
you’re doing to be a coach on the bench. Let’s see, a
better analogy might be the coxswain on a crew, there you go. “Pull,
pull, pull,” trying to keep everybody pulling together.
When people ask me what I do—there are about 155 lawyers in
the [Office of the] General Counsel establishment throughout—I
say to people, “My first job is to grow the tomatoes that are
going to replace me.” That is my first job. The second job is
lawyers tend to have egos, and it’s like pushing 150 ADHD [attention
deficit-hyperactivity disorder] frogs through a burning building in
a wheelbarrow. It’s like, “Just trust me, we’ll
get to the exit.”
Yes, but they’re great. I have leaders and I have great people,
really great people.
Before we close, you talked about having to talk with folks on the
Hill. Is that you, or do you pull the information together and have
someone carry the water up there?
Courtney’s gone up quite a bit, and Sumara’s gone up quite
a bit. The questions are usually about the commercial, the intellectual
property, what are the government’s march-in rights, et cetera.
Here’s the bottom line—I’ve had an empire. When
I was in the Marine Corps, I had 1,500 lawyers working for me. Here,
my job is to help develop the people. I think it was my first week
here, the first thing they sent in to me was a brief that had to go
up to the A Suite [Administrator’s office]. It was very well
written, it came in my office, it had my name to sign. I called the
attorney in and we sat down and went over it, and I played sort of
devil’s advocate and with the Socratic method for a while.
“I can’t sign this,” and they said, “What’s
wrong?” I said, “I didn’t do it, so I can’t
sign it. Here’s what I want you to do. Take this back, I want
you to put your name down as a signer. Put a little block that says
‘approved,’ and I’ll initial in the block. Then
you’ll go up and brief the Administrator.” “What?”
I said, “You’ll go up and brief. I’ll go with you,
but you’re going to brief. These are very smart people up there,
and they know I’m not doing the work. They know that, and I
need them to know just how good you are.”
That was like a revolution to some folks here, but that was the leadership
trait from the Marine Corps. You let your people shine. You have enough
confidence in them, you let your people shine. You showcase the people
that are doing the work. Two things that I took away from that. Number
one, a lot of the people were shocked because they’d never been
up to the suite to brief the Administrator. Number two, you get their
very best work. That’s a byproduct, but you get their very best
work. They’re invested in it, they are proud of it. They know
they’re going to have to go up and brief it. You get their very
best work, and their best work is superb.
Thank you very much for your generous time this morning.
Oh, thank you guys. I know you’re going to try and weave a story
together, that’s great.
to JSC Oral History Website