Contract analysis

I. INTRODUCTION AND SUMMARY OF ARGUMENT This pre-hearing brief is submitted by Whitmore Aerospace LLC ("Whitmore" or "Protester") in advance of the telephonic hearing scheduled for January 4, 2024, before the United States Government Accountability Office ("GAO") in the above-captioned protest. This brief addresses Ground 3 of Whitmore's protest, which challenges the United States Department of the Air Force's failur

II. STATEMENT OF FACTS A. The Parties Whitmore Aerospace LLC is a Virginia limited liability company headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171. Whitmore's CAGE Code is 7W4K2, and its SAM.gov Unique Entity Identifier ("UEI") is JK7RMVB4DL83. Whitmore is classified as a large business under North American Industry Classification System ("NAICS") code 336413 (Other Aircraft Parts a

III. LEGAL STANDARD FOR ORGANIZATIONAL CONFLICT OF INTEREST A. Statutory and Regulatory Framework The Federal Acquisition Regulation addresses organizational conflicts of interest in FAR Subpart 9.5 (Organizational and Consultant Conflicts of Interest). The purpose of this subpart is to ensure that the government's procurement process is fair and that no offeror obtains an unfair competitive advantage by virtue of a

IV. ARGUMENT A. Halcyon Analytical Services LLC Obtained Competitively Useful Non-Public Information Through the AoA Study The first element of an unequal access to information OCI is that the firm at issue had access to non-public, competitively useful information through a prior government contract. This element is conclusively established by the record. The AoA study performed by HAS under Contract No. FA8222-21-C

1. The Firewall Lacked Independent Verification The centerpiece of the Air Force's mitigation plan was a firewall between HAS and Halcyon's Sensor Solutions Division proposal team. According to the agency record, this firewall was documented through internal Halcyon corporate procedures and was designed to prevent the flow of AoA-derived information from HAS to the proposal team. However, the firewall was designed an

2. CEO Self-Certification Is Not Adequate Mitigation The second element of the Air Force's mitigation plan was a certification by Halcyon's CEO, Raymond K. Osterhaus, that no AoA-derived information was shared between HAS and the Sensor Solutions Division proposal team. This certification is set forth at AR Tab 32. The inadequacy of CEO self-certification as a mitigation measure is evident on its face. Mr. Osterhaus,

3. No Assessment of Personnel Overlap The agency record does not reflect any analysis of whether individuals who worked on the AoA study for HAS subsequently participated in the preparation of Halcyon's proposal for Solicitation No. FA8222-23-R-0087. This omission is a glaring deficiency in the mitigation plan. HAS and Halcyon are affiliated entities under common ownership. They share a common corporate parent, commo

4. The Contracting Officer's Determination Was Conclusory The Contracting Officer's OCI determination memorandum, set forth at AR Tab 31, reflects Colonel Prescott's conclusion that the mitigation plan was "adequate" to address the potential unequal access to information OCI. However, this determination is conclusory in nature and fails to reflect the kind of reasoned analysis that FAR 9.504(a) requires. The determin

V. WITNESSES AND TESTIMONY Whitmore intends to present one witness on direct examination and reserves the right to cross-examine witnesses presented by the agency and the intervenor. Whitmore also reserves the right to call a rebuttal witness as described below. A. Protester's Witness

1. Donald R. Stokes — Vice President, Government Contracts, Whitmore Aerospace LLC Mr. Stokes is Whitmore's Vice President of Government Contracts and has served in that capacity since 2017. He was the senior Whitmore executive responsible for overseeing the preparation and submission of Whitmore's proposal in response to Solicitation No. FA8222-23-R-0087. Expected testimony: Mr. Stokes will testify regarding the fol

2. Greta M. Holloway — President, Sensor Solutions Division, Halcyon Defense Systems Inc. Ms. Holloway is the President of Halcyon's Sensor Solutions Division, the business unit that prepared and submitted Halcyon's proposal in response to Solicitation No. FA8222-23-R-0087. Ms. Holloway is expected to be called as a witness by the intervenor, Halcyon Defense Systems Inc. Whitmore reserves the right to cross-examine M

3. Colonel Diane W. Prescott, USAF — Contracting Officer, AFLCMC, Sensors Directorate Colonel Prescott served as the Contracting Officer for Solicitation No. FA8222-23-R-0087 and is the author of the OCI determination memorandum at AR Tab 31. Colonel Prescott is expected to be called as a witness by the agency. Whitmore reserves the right to cross-examine Colonel Prescott. Expected areas of cross-examination: Whitmor

VI. EXHIBITS AND DOCUMENTARY EVIDENCE Whitmore intends to rely on the following exhibits and documentary evidence during the hearing: Whitmore reserves the right to reference additional Agency Report tabs as needed during the hearing and to introduce any additional exhibits necessitated by the testimony of agency and intervenor witnesses, subject to the GAO Protective Order and the procedural requirements of the hear

VII. PROCEDURAL MATTERS A. Hearing Format and Logistics The telephonic hearing in this matter is scheduled for January 4, 2024, as directed by GAO Senior Attorney Angela M. Palermino. The hearing will be conducted by telephone, consistent with GAO's standard procedures for bid protest hearings. Whitmore estimates that the total duration of the hearing will be approximately two to three hours, including direct testimo

VIII. CONCLUSION AND REQUEST FOR RELIEF For the reasons set forth above, the record in this case establishes a clear and well-documented organizational conflict of interest that was not adequately addressed by the Air Force. Halcyon's wholly owned subsidiary, Halcyon Analytical Services LLC, performed an Analysis of Alternatives study under Contract No. FA8222-21-C-0018 — a $2.3 million contract — that directly infor