Rocketplane Kistler (RpK) has written a letter to NASA seeking to overturn the agency's decision to terminate RpK's COTS Space Act Agreement. NASAspaceflight.com has some interesting excerpts. In the letter, RpK has a delicate task: (1) It must state that all of RpK's problems are due to NASA actions; and (2) it must state why NASA should reconsider its decision even though RpK is saying such bad things about the agency. I don't blame RpK for making its case robustly, but I wonder why RpK would wish to continue COTS, especially if what the letter says about NASA is true. COTS contemplates RpK putting up most of the money -- 70% -- for the program, after all.
As stated previously, I have a minimum of high regard for the way that NASA has done businesses in the past. It is not a reliable partner. Its actions are at best capricious. NASA is the type of customer where you don't know for sure whether the checks will clear. Given these attributes, why would any reasonable businessperson put NASA on a critical path? Fiduciary responsibilities to shareholders dictate otherwise, even if your stomach or conscience could take it.
It appears to me that NASA was realistic about its attributes when it structured the COTS program. The program only makes sense for a business if NASA is perceived as an expendable junior partner -- i.e., if the business were going to do a program like COTS no matter NASA's involvement. This structure also protects the American taxpayers against a bait-and-switch from a commercial program to a traditional government cost-plus program. Apparently, RpK's business plan conceived of NASA's business as central to its plan.
Once RpK's Space Act Agreement is terminated, we could have another round of suitors for the COTS money. But none of these other suitors appear to be designing and building hardware no matter NASA's actions. They all appear to be waiting for NASA to be the senior partner. In this respect, probably they are in the same position as RpK.
I note that there are other programs out there that don't appear to be angling for COTS money -- Armadillo Aerospace and Blue Origin are two examples. Lastly, of course there is SpaceX, which is receiving COTS money, but had its Falcon 9 rocket and Dragon capsule in development well before COTS. SpaceX appears to have approached COTS as an opportunity to do some marketing with NASA for space station-related and non-space station-related business.