Contract analysis

I. INTRODUCTION AND SUMMARY Whitmore Aerospace LLC ("Whitmore" or "Protester") respectfully submits these Supplemental Comments in response to (1) the Supplemental Agency Report filed by the United States Department of the Air Force ("Air Force" or "Agency") on November 27, 2023, and (2) the Intervenor's Comments filed by Halcyon Defense Systems Inc. ("Halcyon" or "Intervenor"), through its counsel of record, Kessler

II. PROCEDURAL BACKGROUND The following procedural history is relevant to these Supplemental Comments and supplements the background set forth in Whitmore's initial protest and its November 17, 2023, Comments on the Agency Report: On March 14, 2023, the AFLCMC Sensors Directorate issued Solicitation No. FA8222-23-R-0087 for the design, manufacture, integration, test, and sustainment of advanced IRCM pod assemblies fo

III. EVALUATION FRAMEWORK AND RESULTS An accurate understanding of the evaluation framework and the comparative evaluation results is essential to assessing the arguments raised in the Supplemental Agency Report and the Intervenor's Comments. Whitmore sets forth the following summary, which is consistent with the framework described in Section M of the Solicitation (AR Tab 5) and the evaluation results documented in

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

1. The Supplemental Agency Report Fails to Cure the SSDD's Deficient Rationale The Air Force's Supplemental Agency Report, filed November 27, 2023, attempts to supplement the record with post hoc explanations for the SSA's tradeoff determination. This effort is unavailing for a fundamental reason: the explanations offered in the Supplemental AR were not contained in the original SSDD and do not reflect the contempora

2. The Intervenor's Arguments Regarding the Tradeoff Are Unavailing Halcyon's Intervenor's Comments, filed on November 22, 2023, by Theodore J. Dunaway of Kessler, Pratt & Dunaway LLP, argue that the SSA had "inherent discretion" in the tradeoff determination and that Whitmore is "merely disagreeing with the agency's exercise of its source selection judgment." Intervenor's Comments at 8. This argument fundamentally m

3. The Tradeoff Failed to Account for Whitmore's Offsetting Advantages Even if the SSDD's cursory reference to Halcyon's Manufacturing Readiness advantage were deemed minimally sufficient to identify a technical benefit (which it is not), the tradeoff analysis is independently flawed because it failed to meaningfully address Whitmore's offsetting advantages in multiple evaluation areas. As detailed in Section III abo

4. The Price Differential Was Not De Minimis The Supplemental Agency Report suggests, at pages 7-8, that the 4.82% price differential between Whitmore and Halcyon was "relatively modest" in the context of a contract with a ceiling value of $387.5 million, and that the narrowness of the price gap did not require extensive explanation in the SSDD. This argument fails for multiple reasons. First, the relevant comparison

1. The Supplemental Agency Report Confirms the Disparity The Air Force's Supplemental Agency Report does not dispute the core factual predicates of Ground 2. Specifically, the Supplemental AR does not dispute that: (a) The Air Force issued two Evaluation Notices — EN-WAL-001 and EN-WAL-002 — to Whitmore during the August 14-25, 2023, discussion period, both addressing identified concerns in Whitmore's Manufacturing R

2. The Agency's Justification for Not Raising Supply Chain Concerns with Halcyon Is Unpersuasive The Supplemental AR advances a single justification for the disparity: that the SSEB's characterization of the Meridian supply chain concentration as a "significant concern" was merely an "observation" or "note" that did not rise to the level of a "weakness" or "deficiency" requiring discussion under FAR 15.306(d). Supple

3. The Intervenor's Arguments Regarding Discussions Are Meritless Halcyon's Intervenor's Comments advance three arguments in defense of the Air Force's discussion conduct, none of which withstands scrutiny. First, Halcyon argues that the Air Force had "no obligation to raise every concern with every offeror" and that "the scope and depth of discussions are committed to the broad discretion of the Contracting Officer.

4. Competitive Prejudice Whitmore was competitively prejudiced by the materially unequal discussions. The prejudice analysis requires Whitmore to demonstrate a reasonable possibility that, but for the agency's improper conduct, the protester would have had a substantial chance of receiving the award. See Aldermere Industries, B-413120.3, Feb. 14, 2017, 2017 CPD ¶ 70 at 16. That standard is satisfied here. Had the Air

1. Response to the Supplemental Agency Report's OCI Arguments The Supplemental Agency Report provides additional detail on the organizational conflict of interest ("OCI") mitigation plan implemented by the Air Force regarding Halcyon Analytical Services LLC's ("HAS") prior performance of the Analysis of Alternatives ("AoA") study under Contract No. FA8222-21-C-0018, a $2.3 million contract awarded in September 2021.

2. Response to the Intervenor's OCI Arguments Halcyon's Intervenor's Comments advance two principal arguments on the OCI ground, neither of which is persuasive. First, Halcyon asserts that the AoA study addressed "broad capability assessments and technology surveys" that were "general in nature" and did not address "the specific technical requirements set forth in the solicitation." Intervenor's Comments at 20. Halcy

1. Response to the Supplemental Agency Report The Supplemental Agency Report argues that the solicitation's Section M criteria did not require a labor rate realism analysis for CLIN 0002 (Engineering Support Services, firm-fixed-price per labor hour) because the contract type for CLIN 0002 is firm-fixed-price ("FFP"). The Agency contends that realism analysis is generally required only for cost-reimbursement or labor

2. Response to the Intervenor's Arguments Halcyon's Intervenor's Comments argue that CLIN 0002, Engineering Support Services, "constitutes a small portion of the overall contract value" and that "any alleged realism issue is immaterial to the source selection outcome." Intervenor's Comments at 24. Halcyon further contends that Whitmore has not identified any specific labor rates that it alleges are unrealistic, and t

V. CORRECTIVE ACTION REQUEST For all of the foregoing reasons, and for the reasons set forth in Whitmore's initial protest (filed September 26, 2023) and Comments on the Agency Report (filed November 17, 2023), Whitmore respectfully requests that GAO sustain the protest and recommend the following corrective action:

1. Reevaluation of Proposals. The Air Force should be directed to reevaluate proposals under Factor 1 (Technical Approach) and Factor 3 (Management Approach) consistent with GAO's decision and the solicitation's stated evaluation methodology. The reevaluation should include a proper assessment of all identified strengths, weaknesses, and concerns for both offerors, conducted on a level playing field and free from the

2. New Best-Value Tradeoff Analysis. The Air Force should be directed to conduct a new best-value tradeoff analysis with a documented rationale that identifies specific technical discriminators justifying any price premium, as required by FAR 15.308. The tradeoff analysis should consider all evaluation factors and subfactors, including areas where Whitmore holds evaluated advantages, and should provide a reasoned exp

3. Termination of Halcyon's Contract. If, upon reevaluation, Whitmore's proposal is determined to represent the best value to the government and Whitmore is selected for award, the Air Force should terminate Halcyon's contract (Contract No. FA8222-23-D-0193) for the convenience of the government, pursuant to the termination provisions of the contract and applicable regulations.

4. Reimbursement of Protest Costs. The Air Force should reimburse Whitmore for the costs of filing and pursuing this protest, including reasonable attorneys' fees and consultant costs, pursuant to 4 C.F.R. § 21.8(d)(1). Whitmore has incurred substantial costs in prosecuting this protest, including the costs of retaining counsel, engaging technical consultants, and preparing for the January 4, 2024, hearing. These cos

VI. CONCLUSION The Air Force's Supplemental Agency Report and Halcyon Defense Systems Inc.'s Intervenor's Comments fail to address the fundamental deficiencies in the source selection process that Whitmore has identified in its protest filings. The SSDD's best-value tradeoff analysis remains unexplained and undocumented, in violation of FAR 15.308. The SSA elected to pay a $17.4 million premium for Halcyon's proposal

1. These Supplemental Comments have been reviewed for compliance with the Protective Order issued by the Government Accountability Office on October 12, 2023, in Case Nos. B-422187 and B-422187.2.

2. No protected information, as defined by the Protective Order, has been disclosed in this non-protected version of the filing. All references to source-selection-sensitive and proprietary information have been limited to information that is already part of the public record, information that has been declassified or designated as non-protected by the parties, or general descriptions that do not reveal the substance

3. A separate protected version of these Supplemental Comments, marked in accordance with the procedures set forth in the Protective Order (including the designation of protected material in brackets and highlighted text as required by Paragraph 6 of the Protective Order), has been filed under seal with the Government Accountability Office and served only upon counsel who have been admitted under the Protective Order

4. All counsel and support staff at Calderwood & Harkness LLP who had access to protected materials in connection with the preparation of these Supplemental Comments have executed the requisite acknowledgments and are in compliance with the terms of the Protective Order. ________________________________________ Claudia Merritt Responsible Partner Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C.