Contract analysis

I. INTRODUCTION AND SUMMARY Whitmore Aerospace LLC ("Whitmore" or "Protester") respectfully submits these Comments on the Agency Report ("AR") filed by the United States Department of the Air Force (the "Agency" or "Air Force") on October 30, 2023, and distributed to protester's counsel under the protective order issued in this matter on October 31, 2023. These Comments are filed pursuant to 4 C.F.R. § 21.3(i) and wi

II. BACKGROUND A. The Solicitation On March 14, 2023, the Air Force Life Cycle Management Center ("AFLCMC"), Sensors Directorate, issued Solicitation No. FA8222-23-R-0087 (the "Solicitation") seeking proposals for an indefinite-delivery/indefinite-quantity ("IDIQ") contract with firm-fixed-price ("FFP") task orders for advanced infrared countermeasure ("IRCM") pod assemblies and associated engineering support service

III. ARGUMENT A. Ground 1: The SSA's Best-Value Tradeoff Analysis Was Unreasonable and Violated FAR 15.308

1. Legal Standard The Federal Acquisition Regulation imposes a clear and well-established obligation on the Source Selection Authority to document the rationale for any tradeoffs made in a best-value source selection. FAR 15.308 provides that "[t]he source selection authority's (SSA) decision shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation" and that th

2. The SSDD Fails to Document Any Substantive Tradeoff Rationale The SSDD (AR Tab 7), prepared and signed by BGen Harlan T. Jeffcoat on September 14, 2023, is the sole contemporaneous document reflecting the SSA's source selection decision. It is the document that must bear the weight of the tradeoff analysis. Upon review, the SSDD is strikingly devoid of substantive tradeoff rationale. The SSDD identifies the overal

3. The Record Demonstrates That the Ratings Differences Do Not Support the Premium The evaluation results set forth in Section II.D above demonstrate that the two proposals were closely rated across the vast majority of evaluation factors and subfactors. When the ratings are examined at the subfactor level — which is where the meaningful technical comparison occurs — the picture that emerges is one of closely matched

4. The Agency Report Does Not Cure the SSDD's Deficiency Recognizing the thinness of the SSDD's tradeoff rationale, the Agency's memorandum of law in the AR devotes several pages to constructing a post hoc justification for the source selection decision. The memorandum asserts that Halcyon's Manufacturing Readiness proposal was superior because it demonstrated a higher production facility readiness level, included a

1. Legal Standard When an agency elects to conduct discussions in a negotiated procurement, it must do so in a manner that is meaningful and evenhanded. FAR 15.306(d)(3) requires that, "[a]t a minimum, the contracting officer must . . . [d]iscuss deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond." This requirement applies equa

2. The Agency Issued Evaluation Notices to Whitmore But Not to Halcyon on Comparable Issues During the August 14 through August 25, 2023 discussion period, the Air Force's conduct of discussions was markedly disparate in its treatment of the two offerors remaining in the competitive range. The Air Force issued two Evaluation Notices to Whitmore, both directed at Whitmore's Manufacturing Readiness subfactor proposal:

3. The Unredacted AR Tabs 22 and 28 Confirm the SSEB's Documented Concerns About Halcyon's Supply Chain The unredacted versions of AR Tab 22 and AR Tab 28, produced pursuant to this Office's November 9, 2023 order, reveal the full extent of the SSEB's documented concerns about Halcyon's supply chain approach — concerns that the Air Force chose not to raise with Halcyon during discussions. AR Tab 22 (SSEB Evaluation N

4. The Unequal Discussions Prejudiced Whitmore The competitive prejudice arising from the Air Force's unequal discussions is both direct and readily demonstrable. Had the Air Force raised its supply chain concerns with Halcyon during discussions — as FAR 15.306(d)(3) and the principle of evenhandedness required — two possible outcomes might have resulted. Halcyon might have revised its approach by identifying a secon

1. Legal Standard The Federal Acquisition Regulation requires contracting officers to identify and evaluate potential organizational conflicts of interest and, where appropriate, avoid, neutralize, or mitigate them. FAR 9.504(a) provides that "[t]he contracting officer shall analyze planned acquisitions in order to . . . identify and evaluate potential organizational conflicts of interest as early in the acquisition

2. Halcyon Analytical Services LLC's AoA Study Created an Unequal Access OCI The record establishes the following undisputed facts regarding the origin of the organizational conflict of interest. Halcyon's wholly owned subsidiary, Halcyon Analytical Services LLC ("HAS"), performed an Analysis of Alternatives ("AoA") study under Contract No. FA8222-21-C-0018 for the AFLCMC Sensors Directorate. AR Tab 33 (OCI Mitigatio

3. The Air Force's Mitigation Plan Was Inadequate The COSF (AR Tab 1) acknowledges that the Contracting Officer, Colonel Diane W. Prescott, identified the potential OCI arising from HAS's performance of the AoA study and implemented a mitigation plan. AR Tab 1 (COSF) at 3–4. The mitigation plan is set forth in AR Tab 33 and consists of two principal elements: (a) An information barrier (commonly referred to as a "fir

4. Competitive Prejudice Whitmore was prejudiced by the inadequately mitigated OCI because Halcyon's access to non-public requirements information through the AoA study may have informed the technical approach reflected in Halcyon's proposal — particularly under Factor 1(a) (System Design & Integration) and Factor 1(b) (Manufacturing Readiness), where Halcyon received "Outstanding" ratings. An offeror that has advanc

1. Legal Standard When a solicitation requires cost or price realism analysis, the agency must evaluate whether the offeror's proposed costs or prices are realistic for the work to be performed. FAR 15.404-1(d)(1) provides that "[c]ost realism analysis is the process of independently reviewing and evaluating specific elements of each offeror's proposed cost estimate to determine whether the estimated proposed cost el

2. The Agency Did Not Conduct a Realism Analysis of CLIN 0002 CLIN 0002 (Engineering Support Services) was priced on a firm-fixed-price per labor hour basis across multiple labor categories, including systems engineers, software engineers, field service engineers, and logisticians. AR Tab 2 (Solicitation, Section B, CLIN 0002). Section M of the Solicitation, as amended by Amendment 0002, stated that "[p]rice will be

3. Competitive Prejudice If the Agency had conducted a proper realism analysis of Halcyon's CLIN 0002 labor rates, the likely result would have been an upward adjustment of Halcyon's evaluated price to realistic levels. Such an adjustment would have increased Halcyon's total evaluated price beyond its already-higher figure of $361,200,000, further widening the $17.4 million gap between Halcyon's evaluated price and W

IV. CONCLUSION AND REQUESTED RELIEF For the foregoing reasons, the protest should be sustained on all four grounds. The record demonstrates that: (1) the SSA's best-value tradeoff analysis was unreasonable and failed to comply with FAR 15.308 because the SSDD contained no substantive rationale for paying a $17.4 million price premium and the AR's post hoc rationalization cannot cure the deficiency in the contemporane

1. The Air Force reevaluate proposals under Factor 1 (Technical Approach) and Factor 3 (Management Approach) consistent with the principles set forth in this Office's decision, with particular attention to the adequacy of the OCI mitigation measures and the evenhandedness of any discussions conducted during the reevaluation.

2. The Air Force conduct a new best-value tradeoff analysis with a documented rationale that identifies specific technical discriminators justifying any price premium, in compliance with FAR 15.308, and that accounts for all areas of Whitmore superiority as well as Halcyon superiority across all evaluation factors and subfactors.

3. If Whitmore is selected for award following reevaluation, the Air Force terminate Halcyon's contract (Contract No. FA8222-23-D-0193) for the convenience of the Government pursuant to FAR 49.101.

4. The Air Force reimburse Whitmore for its costs of filing and pursuing this protest, including reasonable attorneys' fees, pursuant to 4 C.F.R. § 21.8(d)(1). Respectfully submitted, CALDERWOOD & HARKNESS LLP By: ________ Claudia Merritt Responsible Partner Lt. Col. (Ret.) Nathan Yardley Of Counsel Megan Zhao Senior Associate 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-4800 Facsimile: (2