Contract analysis

I. Purpose and Background This memorandum establishes binding internal procedures for all members of the Calderwood & Harkness LLP engagement team handling protected material in connection with the bid protest filed before the Government Accountability Office on behalf of our client, Whitmore Aerospace LLC ("Whitmore" or "WAL"). The protest challenges the United States Department of the Air Force's award of Contract

II. Admitted Counsel and Technical Advisors A. Admitted Counsel Under the Protective Order The following Calderwood & Harkness LLP attorneys have executed Protective Order Acknowledgment forms, which were filed with the GAO on October 12, 2023, and are authorized to access, review, handle, and use protected material in connection with this matter: Only the individuals listed above are authorized to access protected m

III. Definition of Protected Material A. Categories of Protected Material Protected material encompasses any information designated by the Air Force, by Halcyon Defense Systems Inc. (represented by the law firm of Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102, with lead partner Theodore "Ted" J. Dunaway serving as counsel of record), or by any other party as protected under th

1. Source Selection Evaluation Records. This category includes all materials generated by the Source Selection Evaluation Board ("SSEB") in connection with Solicitation No. FA8222-23-R-0087, including SSEB evaluation notes, consensus briefing slides and supporting documentation, individual evaluator worksheets and scoring sheets, and any memoranda or correspondence reflecting the deliberative process of the SSEB.

2. Source Selection Decision Document. The Source Selection Decision Document ("SSDD") prepared by the Source Selection Authority, Brigadier General Harlan T. Jeffcoat, USAF, documenting the rationale for the award decision, the comparative analysis of proposals, and the integrated assessment of the evaluation results across all evaluation factors.

3. Awardee Proposal Volumes. All volumes of Halcyon Defense Systems Inc.'s proposal submitted in response to the solicitation, including the Technical Volume, Management Volume, Past Performance Volume, and Pricing Volume, together with any revisions submitted during the discussion period.

4. Evaluation Notices. Evaluation Notices ("ENs") issued to offerors during the discussion period conducted between August 14 and August 25, 2023, including ENs issued to Halcyon, to Whitmore, and (to the extent included in the Agency Report) to any other offerors.

5. Internal Agency Memoranda. Internal agency memoranda and correspondence regarding competitive range determinations, discussion strategies, evaluation rationale, and other aspects of the source selection process, including any legal reviews conducted by the contracting officer's legal counsel or the procuring activity's Office of General Counsel.

6. Awardee Proprietary Pricing Data. Halcyon's proprietary pricing data, including the evaluated total price of $361,200,000 and all underlying cost and pricing breakdowns, basis of estimate information, forward pricing rate agreements, and subcontractor pricing data submitted with the proposal.

7. Awardee Subcontractor Information. Information regarding Halcyon's subcontractors and supply chain, including information concerning Meridian Semiconductor GmbH (Königsbrücker Straße 142, 01099 Dresden, Germany), which is identified in publicly available sources as Halcyon's sole-source supplier of gallium arsenide ("GaAs") sensor wafers used in the IRCM pod assemblies. Subcontractor teaming arrangements, workshar

8. Third Offeror Information. Information concerning the third offeror, Marlowe Asset Management Electro-Optics Corp. (900 Technology Court, Colorado Springs, Colorado 80919), which was eliminated from the competitive range on August 3, 2023, prior to the commencement of discussions. This information may include Marlowe Asset Management's proposal materials and the agency's evaluation thereof to the extent such mater

9. Other Designated Material. Any other material marked or designated as "PROTECTED" or otherwise subject to the Protective Order by the producing party, the GAO, or by agreement of the parties. The foregoing list is illustrative, not exhaustive. The operative question is whether the producing party has designated the material as protected. If a document or piece of information bears a protective designation, it must

IV. Prohibition on Disclosure to Client Personnel A. Absolute Bar on Client Access This section addresses one of the most critical — and, in the undersigned's experience, most frequently misunderstood — aspects of GAO Protective Orders. The rule is absolute and admits of no exceptions: No protected material may be shared with, disclosed to, or discussed with any personnel of Whitmore Aerospace LLC. This prohibition e

1. General Status Updates. Admitted counsel may inform the client of procedural developments, upcoming deadlines, and the general posture of the case.

2. General Assessment of Strengths and Weaknesses. Admitted counsel may discuss the general nature, strengths, and weaknesses of the protest grounds with client personnel, provided that no protected information is disclosed in the course of such discussions. For example, counsel may advise the client that a particular protest ground appears strong or weak based on the record, without revealing the specific protected

3. General Description of Agency Report Contents. Counsel may describe the general categories of documents received in the Agency Report (e.g., "We have received the evaluation records, the SSDD, and the awardee's proposal volumes") and the general nature of the agency's legal arguments as set forth in the Memorandum of Law, but may not reveal specific protected content.

4. Information Already Known to the Client. Counsel may freely discuss information that is already known to the client through non-protected sources, including information disclosed to Whitmore during its enhanced post-award debriefing conducted on September 22, 2023, pursuant to 10 U.S.C. § 3304. The debriefing materials provided to Whitmore included the client's own evaluation ratings and certain comparative inform

V. Physical and Electronic Security Procedures A. Physical Document Storage The physical security of protected materials is essential to compliance with the Protective Order. The following procedures govern the storage and handling of all printed or hard-copy protected materials:

1. Designated Storage Location. All printed or hard-copy protected materials must be stored in the locked filing cabinet designated for matter 1019-00003 in the secure document room on the 11th floor of the firm's Washington, D.C. office, located at 1750 K Street NW, Suite 1100. The filing cabinet has been labeled with the matter number and a notice that its contents are subject to the GAO Protective Order. The secur

2. Locked at All Times. The filing cabinet is to remain locked at all times when not actively being accessed by admitted counsel. Keys to the filing cabinet have been distributed to each of the three admitted counsel members (Merritt, Yardley, Zhao). No duplicate keys may be created, and keys may not be loaned to any non-admitted individual. If a key is lost, Claudia Merritt must be notified immediately so that the l

3. Sign-Out Log. A sign-out log must be maintained on the interior of the filing cabinet door. Each instance of access to the filing cabinet must be recorded in the log. The following information must be entered for each access: (i) the name of the person accessing the material; (ii) the date and time of access; (iii) the Agency Report Tab number(s) or document identifier(s) reviewed; and (iv) the date and time of re

4. No Removal from Secure Document Room. Protected material in hard-copy form may not be removed from the secure document room under any circumstances. Admitted counsel must review all physical materials on-site in the secure document room. Materials may not be taken to individual offices, conference rooms, or any other location within or outside the firm's offices. B. Electronic Document Storage The following proced

1. Designated Secure Matter Folder. Electronic copies of protected materials must be stored exclusively in the firm's designated secure matter folder on the document management system ("DMS"), which has been established under the matter number 1019-00003 with a subfolder labeled "PROTECTED — Protective Order Materials." This folder is accessible only by the three admitted counsel members (Merritt, Yardley, Zhao) and

2. Access Restrictions. The secure matter folder must be access-restricted with permissions set by the firm's Information Technology ("IT") department. The IT department has been instructed to configure the folder with the most restrictive access settings available, limiting read, write, and download permissions to the four authorized individuals identified above. No broader team access is permitted. The IT departmen

3. Prohibited Storage Locations. Protected electronic documents must not be stored on personal devices (including personal laptops, tablets, or smartphones), portable storage media (including USB flash drives, external hard drives, SD cards, or CDs), personal email accounts (including personal Northgate Software, Cascade Health IT, Ridgeline Technologies, or other web-based email services), or any cloud storage platf

4. Email Transmission. Email transmission of protected material is permitted only between admitted counsel using the firm's encrypted email system (Calderwood & Harkness's Ashgrove Software Exchange environment with TLS 1.3 encryption). Each email containing or attaching protected material must include the following legend in both the subject line and the body of the email: "PROTECTED — SUBJECT TO GAO PROTECTIVE ORDE

1. Designated Secure Printer. Printing of protected materials is limited to the secure printer located in the 11th-floor document room (Printer ID: DC-11-SEC-01). Admitted counsel must retrieve printouts immediately upon printing and may not leave them unattended at the printer or anywhere else. The secure printer has been configured to require badge authentication before releasing print jobs, providing an additional

2. Minimization of Copies. Photocopying of protected materials is restricted and should be minimized to the greatest extent practicable. In general, admitted counsel should work from the original Agency Report copies or electronic versions rather than creating duplicates. When copies are necessary (for example, to facilitate annotation during review), any copies made must be logged in the sign-out log referenced in S

3. Destruction of Excess Copies. Any copies of protected material that are no longer needed for immediate use should be destroyed by cross-cut shredding using the shredder located in the secure document room. Destruction of copies should be noted in the sign-out log.

VI. Work Product Derived from Protected Material A. Briefs and Filings All GAO filings that incorporate or reference protected material — including the protester's comments on the Agency Report, any supplemental comments, hearing briefs (if a hearing is convened), post-hearing briefs, and any other submissions to the GAO — must be prepared in two separate versions:

1. Protected Version. The protected version will be filed under the Protective Order and will be available only to admitted counsel of each party and to the GAO attorneys and decision-makers assigned to the case. The protected version will contain the full text of the filing, including all references to, quotations from, and analysis of protected material. The protected version must bear the protective legend specifi

2. Redacted/Public Version. The redacted version will be prepared by removing all protected information from the filing and replacing it with appropriate redaction indicators (e.g., brackets with the notation "[DELETED]" or "[REDACTED]"). The redacted version is suitable for distribution to non-admitted team members and client personnel and will serve as the version of record for purposes of any subsequent public dis

VII. Communication with Opposing Parties and GAO A. Coordination with Agency Counsel All communications with counsel for the contracting agency — Captain Lucas M. Hargrove, USAF, Judge Advocate General's Corps, and Miriam T. Castellano, Senior Attorney, Office of the General Counsel of the Department of the Air Force, Acquisition and Fiscal Law Division (SAF/GCQ) — regarding any aspect of the protected material must

VIII. Procedures for Return or Destruction of Protected Material Upon conclusion of the protest proceedings — including the resolution of any corrective action that may be directed by the GAO, the completion of any post-decision cost claim submitted under 4 C.F.R. § 21.8, and the expiration of any applicable appeal period — all protected materials, both physical and electronic, must be returned to the producing party

1. Physical Materials. All hard-copy protected materials, including the original Agency Report tabs, any copies made during the course of the proceeding, and any handwritten notes taken by admitted counsel during review of protected material, must be either (a) returned to the agency and intervenor's counsel by secure courier or registered mail, or (b) destroyed by cross-cut shredding, as directed by the Protective O

2. Electronic Materials. All electronic copies of protected materials, including documents stored in the secure matter folder on the DMS, must be permanently deleted. The IT department will be engaged to confirm that all electronic copies have been removed from the firm's systems, including from backup tapes and archive storage, to the extent reasonably practicable.

3. Certification. Admitted counsel must certify in writing to the GAO that all protected materials have been returned or destroyed in accordance with the terms of the Protective Order. This certification will be signed by Claudia Merritt as responsible partner and filed with the GAO within the timeframe specified in the Protective Order.

4. Retained Work Product. The firm may retain attorney work product that references or summarizes protected material — such as internal memoranda, draft filings, and legal analyses — provided that such work product is maintained under the same access restrictions as the underlying protected material, unless the Protective Order expressly requires the destruction of all derivative work product. Any retained work produ

5. Matter Closing Procedures. The matter closing process for engagement 1019-00003 must include a specific, documented step for verification of the return or destruction of all protected materials. The responsible partner will not authorize the closure of the matter until this step has been completed and the required GAO certification has been filed.

IX. Consequences of Non-Compliance The seriousness of compliance with the Protective Order and these internal procedures cannot be overstated. Violation of the Protective Order or these internal procedures may result in the following consequences:

1. GAO Sanctions. The GAO has broad discretion to impose sanctions for violations of its Protective Orders, including the potential dismissal of the protest with prejudice. Dismissal would terminate Whitmore's challenge to the contract award and, given the time-sensitive nature of the procurement, would likely result in the permanent loss of the competitive opportunity. The GAO may also impose lesser sanctions, such

2. Bar Disciplinary Referral. The GAO may refer attorneys involved in a protective order violation to the appropriate state bar disciplinary authorities. For the admitted counsel on this engagement, the relevant jurisdictions include the District of Columbia Bar, the Virginia State Bar, and any other jurisdictions in which the attorney is admitted. Disciplinary proceedings could result in sanctions ranging from a pri

3. Criminal Liability. In cases involving the willful disclosure of confidential government information, attorneys and other individuals may face criminal prosecution under 18 U.S.C. § 1905, which provides for fines and imprisonment of up to one year. Additional criminal statutes may also apply, depending on the nature of the disclosure and the information involved.

4. Internal Firm Disciplinary Action. Any violation of these procedures, whether or not it results in an actual breach of the Protective Order, will be subject to the firm's internal disciplinary processes. Depending on the severity of the violation, consequences may range from a written warning to termination of employment or partnership. Immediate Reporting Obligation. Any team member who becomes aware of a potenti

X. Questions and Contacts All questions regarding the handling of protected material, the scope of the Protective Order, the procedures set forth in this memorandum, or any other aspect of the protective order framework applicable to this matter should be directed to: Claudia Merritt Partner, Government Contracts Calderwood & Harkness LLP Direct Line: (202) 555-4120 Email: c.merritt@calderwoodharkness.com Lt. Col. (R

XI. Acknowledgment Each team member receiving this memorandum is required to sign and return the attached Acknowledgment Form (Attachment A) to Claudia Merritt by close of business on Monday, October 16, 2023, confirming receipt and understanding of the procedures set forth herein. The following individuals must execute and return the Acknowledgment Form: • Ian Blackwood • Alan Burke • Sara Hendricks • Nathan Yardley