CALDERWOOD & HARKNESS LLP Attorneys at Law 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-7200 Facsimile: (202) 555-7201
PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT — ATTORNEY-CLIENT COMMUNICATION
December 29, 2023
MEMORANDUM
TO: Claudia Merritt, Responsible Partner Lt. Col. (Ret.) Nathan Yardley, Of Counsel
FROM: Megan Zhao, Senior Associate
RE: Witness Preparation — Donald R. Stokes, VP, Government Contracts, Whitmore Aerospace LLC; GAO Hearing, January 4, 2024, B-422187; B-422187.2 (Ground 3 — Organizational Conflict of Interest)
MATTER NO.: 1019-00003
COPIES: Alan Burke (Lead Associate), Sara Hendricks (Working Associate) — for reference only
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I. Purpose and Scope of Memorandum
This memorandum sets forth the comprehensive preparation plan for the testimony of Donald R. Stokes at the telephonic hearing before the Government Accountability Office scheduled for January 4, 2024, in connection with the bid protests docketed at B-422187 and B-422187.2. This memorandum is intended to guide the preparation sessions with Mr. Stokes, to identify the key themes and factual predicates that his testimony should establish, to anticipate the lines of cross-examination likely to be pursued by agency counsel and intervenor's counsel, and to flag the areas of risk and the cautionary instructions necessary to avoid unforced errors during the hearing.
The January 4, 2024 hearing has been ordered by the GAO and is limited in scope to Ground 3 of the protest filed by Whitmore Aerospace LLC ("Whitmore" or "Protester"): the allegation that the awardee, Halcyon Defense Systems Inc. ("Halcyon" or "Intervenor"), possesses an unmitigated organizational conflict of interest ("OCI") arising from the fact that its subsidiary, Halcyon Analytical Services LLC ("HAS"), performed an Analysis of Alternatives ("AoA") study under Contract No. FA8222-21-C-0018, valued at approximately $2.3 million, that directly informed the requirements underlying Solicitation No. FA8222-23-R-0087 for the next-generation Infrared Countermeasures ("IRCM") pod assemblies. The central theory of Ground 3 is that HAS's performance of the AoA study gave Halcyon access to non-public government deliberative material and requirements formulation analyses, thereby providing Halcyon with an unfair competitive advantage in responding to the solicitation — an advantage that was not adequately mitigated by the Air Force's OCI mitigation plan.
Mr. Stokes will testify as a fact witness on behalf of the protester, Whitmore Aerospace LLC. His testimony is expected to establish the factual predicate for Whitmore's OCI allegation, including the existence of the AoA study, the corporate relationship between HAS and Halcyon, the apparent alignment between the AoA study's scope and the solicitation's technical requirements, and Whitmore's lack of access to the information generated by the AoA study. Mr. Stokes is not expected to offer expert opinions or legal conclusions, and care must be taken to ensure that his testimony remains within the boundaries of his personal knowledge and experience.
The other witnesses expected to testify at the hearing are Greta M. Holloway, President of the Sensor Solutions Division of Halcyon Defense Systems Inc., who will testify on behalf of the intervenor, and Col. Diane W. Prescott, USAF, the Contracting Officer from the AFLCMC Sensors Directorate, who will testify on behalf of the agency. The anticipated opposing counsel who may conduct cross-examination of Mr. Stokes are Capt. Lucas M. Hargrove, USAF, JAG, serving as the agency trial attorney, and Theodore "Ted" J. Dunaway of Kessler, Pratt & Dunaway LLP, serving as lead counsel for the intervenor. Associate Rachel N. Sorensen of Kessler, Pratt & Dunaway may also participate in the examination on behalf of Halcyon.
It should be noted for procedural context that GAO Senior Attorney Angela M. Palermino, who conducted the December 8, 2023 alternative dispute resolution outcome prediction call, is overseeing procedural and scheduling matters related to this hearing. The ultimate decision on the merits of the protest, including Ground 3, will be authored by Kenneth R. Woodley, Managing Associate General Counsel, who is the assigned decision-maker for B-422187 and B-422187.2.
This memorandum is organized as follows: Section II addresses hearing format and logistics; Section III summarizes Mr. Stokes's background and the scope of his relevant knowledge; Section IV identifies the key themes to be emphasized during testimony; Section V sets forth the anticipated direct examination questions; Sections VI and VII address anticipated cross-examination from agency counsel and intervenor's counsel, respectively, with suggested responses; Section VIII provides cautionary instructions regarding topics to avoid; Section IX details the preparation session schedule; Section X contains a document review checklist; Section XI addresses coordination with other witnesses and counsel; Section XII sets forth a risk assessment; and Section XIII identifies the next steps.
II. Hearing Format and Logistics
The hearing on January 4, 2024 will be conducted by telephone. Dial-in information is expected to be confirmed by the GAO in advance of the hearing date, consistent with the scheduling correspondence exchanged on December 15, 2023, between Megan Zhao and GAO Senior Attorney Angela M. Palermino. As of the date of this memorandum, the specific dial-in number and access code have not yet been provided, and follow-up with Ms. Palermino's office is anticipated for the week of January 1, 2024.
The estimated total duration of the hearing is approximately two to three hours, encompassing the testimony of all three witnesses. The GAO has indicated the following witness order:
1. Donald R. Stokes (Protester's witness) — direct examination by Calderwood & Harkness LLP, followed by cross-examination by agency counsel (Capt. Hargrove) and intervenor's counsel (Mr. Dunaway and/or Ms. Sorensen).
2. Greta M. Holloway (Intervenor's witness) — direct examination by Kessler, Pratt & Dunaway LLP, followed by cross-examination by Calderwood & Harkness LLP and agency counsel.
3. Col. Diane W. Prescott, USAF (Agency's witness) — direct examination by agency counsel, followed by cross-examination by Calderwood & Harkness LLP and intervenor's counsel.
Calderwood & Harkness will conduct the direct examination of Mr. Stokes. It is expected that Claudia Merritt will conduct the direct examination, with Nathan Yardley available to handle any redirect. Cross-examination of Mr. Stokes will be conducted by Capt. Lucas M. Hargrove on behalf of the agency and by Theodore J. Dunaway (and/or Rachel N. Sorensen) on behalf of the intervenor Halcyon.
The testimony will be transcribed by a court reporter, and the transcript will become part of the protest record. All parties will have the opportunity to order copies of the transcript. It is critical that Mr. Stokes speak clearly, pause before answering to allow for objections, and avoid speaking over the questioner. The telephonic format amplifies the risk of talking over one another, and Mr. Stokes should be coached to wait until each question is fully stated before beginning his response.
For the hearing, Mr. Stokes should be located in a quiet, private, and secure location. We recommend that Mr. Stokes participate from Calderwood & Harkness's Washington, D.C. office at 1750 K Street NW, Suite 1100, where a dedicated conference room will be reserved. This will ensure privacy, minimize the risk of background noise or technical difficulties, and allow counsel to be available in person during the hearing to provide logistical support (though counsel may not coach or communicate with the witness during cross-examination).
Mr. Stokes should be reminded of the following procedural rules applicable to telephonic GAO hearings:
• No documents may be consulted during testimony unless those documents have been pre-designated as hearing exhibits and made available to all parties and to the GAO in advance. Any documents that Mr. Stokes may wish to reference should be identified and shared with all parties no later than two business days before the hearing, consistent with standard GAO practice.
• The GAO Protective Order governs the handling of any source-selection-sensitive material. Mr. Stokes is not admitted under the Protective Order and therefore may not be shown or reference any material that has been designated as protected. Only outside counsel (Claudia Merritt, Nathan Yardley, and Megan Zhao) and the technical advisor (Janet K. Overmeyer) are admitted under the Protective Order.
• Mr. Stokes should be available at least thirty minutes before the scheduled start time to test the telephone connection, review any last-minute instructions, and settle into the conference room.
III. Witness Background Summary
A. Professional Background of Donald R. Stokes
Donald R. Stokes serves as Vice President, Government Contracts, at Whitmore Aerospace LLC, a leading defense contractor headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171. In this capacity, Mr. Stokes is responsible for overseeing all aspects of Whitmore's government contract proposals, contract negotiations, post-award contract administration, and regulatory compliance. He reports directly to Whitmore's Chief Operating Officer and is a member of the company's senior leadership team.
Mr. Stokes has been employed by Whitmore Aerospace LLC since approximately 2012. He initially joined the company as a Senior Contracts Manager and was promoted to the position of Director of Government Contracts in 2014. He was further promoted to his current role as Vice President in 2017, a position he has held for approximately six years. Prior to joining Whitmore, Mr. Stokes held various positions in government contracting with other defense and aerospace firms, the details of which are not directly relevant to this hearing but contribute to his extensive experience in the field.
Mr. Stokes previously provided a sworn declaration that was filed with Whitmore's initial protest on September 26, 2023 (the "Declaration of Donald R. Stokes"). That declaration addressed, among other things, Mr. Stokes's knowledge of Whitmore's prior contract performance, the competitive landscape for IRCM pod assemblies, and the factual basis for Whitmore's OCI allegation under Ground 3. The declaration is part of the protest record and will be available to all parties and to the GAO at the hearing. It is imperative that Mr. Stokes's testimony at the hearing be consistent with the statements made in his sworn declaration. Any inconsistencies will be exploited by opposing counsel and could undermine his credibility.
Mr. Stokes also participated in, and provided information during, the debriefing process following the contract award to Halcyon. The debriefing was conducted on September 22, 2023, in accordance with 10 U.S.C. § 3304. The information Mr. Stokes received during the debriefing — including Whitmore's evaluation ratings, the general basis for the award decision, and limited information regarding the OCI mitigation plan — forms part of the factual foundation for his hearing testimony.
B. Stokes's Knowledge Relevant to Ground 3 (OCI)
Mr. Stokes's testimony is relevant to Ground 3 because of his knowledge of the following matters:
Awareness of the AoA Study. Mr. Stokes is aware of the existence of the Halcyon Analytical Services LLC AoA study through publicly available contract records. Specifically, Contract No. FA8222-21-C-0018, awarded to Halcyon Analytical Services LLC, is documented in the Federal Procurement Data System ("FPDS") and USASpending.gov, which identify the contract's value (approximately $2.3 million), the contracting office (AFLCMC Sensors Directorate), and a general description of the contract's scope, including references to analysis of alternatives for next-generation IRCM pod requirements. These publicly available records establish the basic facts of the AoA study's existence, its performer, and its subject matter.
Interactions with Air Force Personnel. During Whitmore's prior contract performance under Contract No. FA8222-19-C-0041, a $92.4 million firm-fixed-price production contract for AN/AAQ-45 IRCM pod subassemblies (period of performance 2019–2022), Mr. Stokes interacted regularly with Air Force personnel at the AFLCMC Sensors Directorate. Through these interactions, Mr. Stokes became aware that an AoA study had been conducted to define the requirements for the next-generation IRCM pod, and that the study's conclusions and recommendations were expected to inform the forthcoming solicitation for the next-generation system.
Alignment of AoA Scope with Solicitation Requirements. Based on his experience with IRCM systems, his knowledge of the publicly available description of the AoA study's scope, and his review of the solicitation requirements as set forth in Solicitation No. FA8222-23-R-0087, Mr. Stokes can testify that the solicitation's requirements appear to track the AoA study's publicly described scope of work and deliverables. This alignment is the factual basis for the inference that the AoA study shaped the solicitation requirements and that the entity performing the study had access to information that was not available to other offerors.
Lack of Direct Knowledge of AoA Contents. It is important to acknowledge that Mr. Stokes does not have direct firsthand knowledge of the specific contents of the AoA study. The study is not publicly available in its entirety, and it was not shared with Whitmore at any time. Mr. Stokes cannot testify about the specific findings, recommendations, or analyses contained in the study. His testimony is limited to the publicly available information about the study's existence and scope, and his expert observations — based on years of experience in IRCM contracting — regarding the apparent alignment between the study's scope and the solicitation's requirements.
C. Whitmore's Prior Contract Performance (Foundation Testimony)
A portion of Mr. Stokes's direct examination will be devoted to establishing Whitmore's background and prior contract performance, which serves as the foundation for his testimony regarding the OCI allegation. This background testimony is important for two reasons: first, it establishes Mr. Stokes's and Whitmore's familiarity with IRCM pod requirements, which qualifies Mr. Stokes to offer observations about the alignment between the AoA study and the solicitation; and second, it demonstrates that Whitmore is a serious, experienced competitor that was prejudiced by any unfair competitive advantage enjoyed by Halcyon.
The key facts regarding Whitmore's prior contract performance are as follows:
• Whitmore held Contract No. FA8222-19-C-0041, a $92.4 million firm-fixed-price production contract for AN/AAQ-45 IRCM pod subassemblies. The contract was performed from 2019 through 2022 and was completed successfully.
• Under this contract, Whitmore manufactured directed infrared countermeasure ("DIRCM") subsystems, missile warning sensor assemblies, and electro-optical targeting pods. These are the same categories of technology and hardware that are the subject of Solicitation FA8222-23-R-0087.
• Whitmore's key subcontractor on both the prior contract and the current proposal is Pinnacle Precision Manufacturing Inc., an Ohio corporation located at 6220 Industrial Parkway, Beavercreek, Ohio 45431. Pinnacle holds a facility security clearance at the Secret level, which it has maintained since 2014. Pinnacle's involvement further demonstrates the depth and maturity of Whitmore's IRCM manufacturing capability.
• Whitmore itself holds a Top Secret facility security clearance and is registered in the System for Award Management ("SAM.gov") under CAGE Code 7W4K2 and Unique Entity Identifier ("UEI") JK7RMVB4DL83.
This background establishes that Whitmore has deep familiarity with IRCM pod requirements, a proven track record of successful performance, and the technical and industrial base to assess whether the AoA study conferred a competitive advantage upon Halcyon.
IV. Key Themes to Emphasize During Testimony
The following themes should be woven throughout Mr. Stokes's testimony, both on direct examination and in his responses during cross-examination. These themes are designed to establish the factual foundation for our legal argument that Halcyon possesses an unmitigated OCI that prejudiced Whitmore and undermined the integrity of the competition.
A. The AoA Study Shaped the Solicitation Requirements
The central factual predicate of Ground 3 is that the AoA study performed by Halcyon Analytical Services LLC under Contract No. FA8222-21-C-0018 directly shaped the requirements set forth in Solicitation FA8222-23-R-0087. Mr. Stokes's testimony should emphasize the following points:
• The AoA study was performed by Halcyon Analytical Services LLC, which is a subsidiary of Halcyon Defense Systems Inc. — the entity that was ultimately awarded the production contract under the solicitation. This corporate relationship is critical because it means that the company performing the independent analysis of alternatives and the company competing for the resulting production contract are part of the same corporate family.
• The AoA study was valued at approximately $2.3 million, indicating that it was a substantial undertaking of significant scope and depth. This was not a cursory or superficial study; a $2.3 million contract reflects a comprehensive analytical effort involving detailed technical analysis, systems engineering assessments, and requirements formulation activities.
• The solicitation requirements for IRCM pod assemblies, as set forth in Solicitation FA8222-23-R-0087, appear to reflect the AoA study's conclusions. Specifically, the solicitation's performance parameters for system design and integration, its sensor integration architecture requirements, and its manufacturing readiness criteria align closely with the publicly described scope of work and deliverables of the AoA study. This alignment is not coincidental — it reflects the natural and expected flow of information from an AoA study into the resulting solicitation.
• The nexus between the study's scope and the solicitation's requirements creates the appearance — and likely the reality — of an unequal playing field. The entity that defined the requirements through the AoA study was then allowed to compete for the contract to fulfill those requirements, with the advantage of having shaped the very criteria against which proposals would be evaluated.
B. Access to Non-Public Information
A key element of the OCI theory is that Halcyon, through its subsidiary HAS, had access to government deliberative processes, requirements formulation discussions, internal cost and performance analyses, and other non-public information that was not available to other offerors, including Whitmore. Mr. Stokes should emphasize:
• That during the course of performing the AoA study, HAS personnel would have had access to government data, internal analyses, threat assessments, and requirements trade-off discussions that are not publicly available and that were not shared with any other potential offeror.
• That Whitmore, despite being an incumbent contractor with extensive experience in IRCM systems, was never given access to the AoA study or its findings at any point — not during Whitmore's prior contract performance, not during the pre-solicitation phase, and not during the proposal preparation period.
• That Mr. Stokes can describe specific instances where the solicitation requirements seemed to reflect specialized knowledge or analytical conclusions that Whitmore did not possess during proposal preparation. To the extent Mr. Stokes has a factual basis for identifying such instances, he should be prepared to describe them concretely while being careful not to speculate beyond his knowledge.
C. Inadequacy of Air Force's OCI Mitigation Plan
The Air Force's defense to the OCI allegation is expected to rely heavily on the assertion that it implemented an OCI mitigation plan that adequately addressed any competitive advantage Halcyon may have derived from the AoA study. Mr. Stokes's testimony should address this theme as follows:
• Mr. Stokes should testify about what Whitmore was told — or, more importantly, what Whitmore was not told — regarding the existence and terms of the OCI mitigation plan. If Mr. Stokes was not informed of the mitigation plan prior to the September 22, 2023 debriefing, this fact underscores the lack of transparency in the Air Force's approach to OCI mitigation.
• If the existence of the mitigation plan was disclosed for the first time during the debriefing, Mr. Stokes should testify about the circumstances of that disclosure, including how much detail was provided and whether Whitmore was given the opportunity to review or comment on the plan's adequacy.
• Mr. Stokes should not speculate about the specific terms of the mitigation plan if he does not know them. The point is not that the plan was necessarily deficient in its specific provisions, but rather that from Whitmore's perspective as a competing offeror, there was no evidence that the competitive playing field was leveled.
D. Competitive Prejudice
To sustain the protest on Ground 3, Whitmore must demonstrate not only that an OCI existed but that it resulted in competitive prejudice. Mr. Stokes's testimony should support the competitive prejudice argument:
• Whitmore submitted a lower-priced proposal. According to information disclosed during the debriefing, Whitmore's evaluated price was $343.8 million, compared to Halcyon's evaluated price of $361.2 million — a difference of $17.4 million, or approximately 4.82%. Despite its lower price, Whitmore was not selected for award.
• The Source Selection Authority justified the price premium paid to Halcyon based on Halcyon's "Outstanding" rating under Factor 1(b), Manufacturing Readiness. If Halcyon's AoA study provided it with insight into the Air Force's manufacturing readiness expectations — which is precisely the type of information an AoA study would generate — this competitive insight could have directly informed Halcyon's technical approach and contributed to the superior rating.
• Mr. Stokes should connect the dots between the AoA study's subject matter, the evaluation criteria in the solicitation, and the basis for the award decision. The AoA study addressed IRCM pod requirements, including system performance, sensor integration, and manufacturing considerations. The solicitation evaluated offerors on system design and integration, manufacturing readiness, and related criteria. The awardee's advantage was most pronounced under the manufacturing readiness subfactor. The inference is clear.
V. Anticipated Direct Examination Questions (Calderwood & Harkness)
The following is the anticipated sequence of questions for Mr. Stokes's direct examination. Claudia Merritt will conduct the direct examination. The questions are organized by topic, and suggested responses or areas of emphasis are noted where appropriate. Mr. Stokes should answer each question in his own words; the questions below are intended to guide preparation, not to script testimony verbatim.
A. Background and Qualifications
Question 1. Please state your name, title, and employer.
Question 2. How long have you held the position of Vice President, Government Contracts, at Whitmore Aerospace LLC?
Question 3. Briefly describe Whitmore Aerospace's business and its experience with infrared countermeasures systems.
Question 4. Describe Whitmore's prior contract performance for the United States Air Force, including Contract No. FA8222-19-C-0041.
Guidance for preparation: These questions are intended to establish Mr. Stokes's credentials and Whitmore's bona fides as an experienced IRCM contractor. Mr. Stokes should answer concisely but with enough detail to establish that Whitmore has deep experience in this specific technology area. He should reference the $92.4 million prior contract, the types of hardware Whitmore manufactured (DIRCM subsystems, missile warning sensor assemblies, electro-optical targeting pods), and the successful completion of the contract from 2019 through 2022.
B. Knowledge of the AoA Study
Question 5. Are you aware of an Analysis of Alternatives study that was conducted for the Air Force related to infrared countermeasures pod requirements?
Question 6. How did you first become aware of this study?
Guidance: Mr. Stokes should explain that he became aware of the AoA study through a combination of publicly available contract records (FPDS, USASpending) and general awareness gained through interactions with Air Force personnel at AFLCMC during Whitmore's prior contract performance. He should not suggest that any Air Force official improperly disclosed information to him.
Question 7. Do you know which entity performed the AoA study?
Question 8. Are you aware that the study was performed by Halcyon Analytical Services LLC, a subsidiary of Halcyon Defense Systems Inc.?
Question 9. Were the results or findings of the AoA study ever shared with Whitmore or made publicly available?
Guidance: Mr. Stokes should answer clearly that the AoA study's results were never shared with Whitmore and that the study is not publicly available. He should emphasize that this lack of access is the core of Whitmore's concern.
Question 10. Based on your experience with IRCM systems and your review of the solicitation, do the technical requirements in Solicitation FA8222-23-R-0087 appear to reflect the scope and objectives of the AoA study?
Guidance: This is the pivotal question in the direct examination. Mr. Stokes should answer affirmatively and explain the basis for his observation. He should identify the alignment between the AoA study's publicly described scope — analysis of alternatives for next-generation IRCM pod requirements, including system performance parameters, sensor integration, and manufacturing considerations — and the corresponding requirements in the solicitation's Statement of Work and evaluation criteria. He should be careful to base this observation on the publicly available information about the AoA study's scope and on his own professional experience, rather than on speculation about the study's specific contents.
C. Competitive Impact
Question 11. In your opinion, would access to the AoA study provide competitively useful information to an offeror responding to this solicitation?
Guidance: Mr. Stokes should answer yes and explain why. An AoA study by its nature involves analyzing the government's alternatives, evaluating trade-offs, assessing performance parameters, and recommending approaches. An offeror with access to this information would have a significantly more informed understanding of the government's priorities, the evaluation criteria's underlying rationale, and the technical approaches most likely to be viewed favorably.
Question 12. Did Whitmore have access to any equivalent source of information about the Air Force's requirements formulation process for this solicitation?
Guidance: Mr. Stokes should answer no. While Whitmore had extensive production experience under the prior contract, it did not have access to the government's internal requirements analysis and alternatives assessment.
Question 13. How did Whitmore develop its technical approach for the solicitation without access to the AoA study?
Guidance: Mr. Stokes should describe Whitmore's proposal development process in general terms — relying on the solicitation documents, publicly available information, Whitmore's own technical expertise and prior performance experience, and standard industry practices. The point is that Whitmore did its best with the information available, but was at a disadvantage compared to an offeror with access to the AoA study.
Question 14. Describe any specific areas of the solicitation requirements where you believe the AoA study may have conferred an advantage on Halcyon.
Guidance: Mr. Stokes should be prepared to identify one or two specific areas if he has a factual basis. For example, if the solicitation includes specific performance parameters or manufacturing readiness criteria that align closely with the AoA study's publicly described scope, he should identify those. If he cannot identify specific provisions, he should speak more broadly about the overall alignment between the study's scope and the solicitation's requirements, and the general competitive advantage that access to the AoA would provide.
D. OCI Mitigation
Question 15. Were you aware, prior to the debriefing on September 22, 2023, that the Air Force had implemented an OCI mitigation plan for Halcyon in connection with this solicitation?
Guidance: If Mr. Stokes was not aware of the mitigation plan before the debriefing, he should say so clearly. This fact supports our argument that the mitigation plan was not transparent and that competing offerors had no opportunity to assess its adequacy or raise concerns before the award decision.
Question 16. What, if anything, were you told about the scope or terms of the OCI mitigation plan during the debriefing?
Guidance: Mr. Stokes should describe exactly what was disclosed and what was not. If the Air Force provided only a general description of the mitigation plan without specifics, Mr. Stokes should testify to that effect.
Question 17. In your experience with government contracting, what steps would you expect an agency to take to mitigate this type of organizational conflict of interest?
Guidance: Mr. Stokes should draw on his experience to describe the types of mitigation measures he would expect, such as firewalls between the study team and the proposal team, restrictions on the flow of information, independent government review of the mitigation plan's effectiveness, and disclosure to competing offerors. He should be careful to frame this as based on his experience, not as a legal standard or conclusion.
VI. Anticipated Cross-Examination Questions — Agency Counsel (Capt. Lucas M. Hargrove)
Capt. Hargrove's cross-examination is expected to focus on three themes: (1) the limits of Mr. Stokes's knowledge regarding the AoA study's contents; (2) the suggestion that Whitmore had equivalent access to information through its prior contract performance and industry activities; and (3) the adequacy of the Air Force's OCI mitigation plan. The following questions and suggested responses are designed to prepare Mr. Stokes for this line of examination.
A. Limits of Stokes's Knowledge
Question 1. Mr. Stokes, you have never read the AoA study performed by Halcyon Analytical Services LLC, correct?
Suggested response: That is correct. The AoA study was not made available to Whitmore at any time. That is, in fact, part of my concern — we had no access to information that our competitor, through its corporate subsidiary, possessed.
Coaching note: This is a classic cross-examination technique — elicit a concession and move on. Mr. Stokes should concede the factual point (he has not read the study) but immediately pivot to the significance of that fact (Whitmore's lack of access is precisely the problem). The pivot is important because it prevents the cross-examiner from using the concession to suggest that Mr. Stokes's testimony is uninformed.
Question 2. You don't know specifically what information was in the study, do you?
Suggested response: I do not know the specific contents of the study. However, I do know from publicly available contract records that the study addressed IRCM pod requirements, which are the same requirements set forth in the solicitation. The scope of the AoA study and the solicitation requirements are closely aligned.
Coaching note: Again, concede the factual limitation but immediately ground the response in what Mr. Stokes does know — the publicly available scope of work — and tie it back to the alignment with the solicitation.
Question 3. Isn't it true that the solicitation requirements were developed by government personnel, not by Halcyon?
Suggested response: The government drafted the solicitation, and I do not dispute that government personnel were responsible for the final requirements. But the AoA study informed that process. The purpose of an AoA study is to analyze alternatives and recommend approaches, and those recommendations naturally feed into the government's requirements formulation. The AoA study's scope of work and the solicitation requirements are closely aligned, which is consistent with the study having shaped those requirements.
Coaching note: This question is designed to suggest that any influence of the AoA study on the solicitation was the government's responsibility, not Halcyon's. Mr. Stokes should acknowledge the government's role but redirect to the point that the problem is not who drafted the solicitation — it is that Halcyon had access to the underlying analysis that informed the drafting.
Question 4. Are you aware that the Air Force implemented an OCI mitigation plan?
Suggested response: I became aware of the existence of a mitigation plan only during or after the debriefing on September 22, 2023. I was not informed of the plan's specific terms, and Whitmore was not given the opportunity to review or comment on the plan before the award was made.
Question 5. Isn't it possible that the mitigation plan adequately addressed any competitive advantage Halcyon might have had?
Suggested response: I cannot evaluate whether the plan was adequate because I do not know its specific terms or how it was implemented. What I can say is that from Whitmore's perspective as a competing offeror, we saw no evidence that the playing field was leveled. We had no access to the AoA study, and we were not informed of the mitigation plan or its terms until after the award decision had already been made.
Coaching note: This is a critical question. Mr. Stokes must avoid the trap of speculating about the plan's adequacy — either positively or negatively. The correct response is to acknowledge his lack of knowledge about the plan's specifics and to emphasize that Whitmore's lack of awareness of the plan itself is a significant concern.
B. Prior Contract Performance — Attempting to Suggest Whitmore Had Equivalent Access
Question 6. Whitmore held a $92.4 million contract for AN/AAQ-45 pod subassemblies. Didn't that give Whitmore significant insight into IRCM requirements?
Suggested response: Our prior contract gave Whitmore extensive production experience with IRCM systems, and we are very proud of the work we performed under that contract. But production experience and access to the government's internal requirements analysis and alternatives assessment are fundamentally different types of information. Our prior contract gave us the ability to manufacture subassemblies based on a defined set of specifications. It did not give us access to the government's deliberative process for defining the next-generation requirements.
Coaching note: This question is designed to suggest that Whitmore's prior contract provided equivalent access to information. Mr. Stokes must draw a clear distinction between production experience (building to specifications) and requirements formulation access (shaping the specifications). This distinction is central to the OCI theory.
Question 7. Did Whitmore attend any industry days or pre-solicitation conferences related to this solicitation?
Suggested response: This requires factual preparation. Prior to the hearing, we must confirm with Mr. Stokes whether Whitmore attended any industry days or pre-solicitation conferences for Solicitation FA8222-23-R-0087. If Whitmore did attend, Mr. Stokes should acknowledge this but note that industry days provide general information available to all attendees, unlike a sole-source AoA study performed exclusively by one offeror's corporate affiliate. If Whitmore did not attend any such events, Mr. Stokes should state that simply and note that no industry day could substitute for the level of access provided by performing the AoA study.
C. Attempting to Undermine Competitive Prejudice
Question 8. Whitmore's proposal was rated "Acceptable" under Manufacturing Readiness. Isn't it possible that that rating reflected Whitmore's own proposal shortcomings rather than any advantage Halcyon had?
Suggested response: Our Manufacturing Readiness rating is the subject of a separate protest ground, and I understand that issue is not before the GAO in this hearing. But the question here is not whether Whitmore's proposal had weaknesses — it is whether Halcyon's access to the AoA study gave it an unfair advantage in shaping its technical approach. Even if Whitmore's proposal could have been stronger in Manufacturing Readiness, that does not excuse Halcyon having access to competitively useful information that was not available to other offerors.
Coaching note: This question attempts to shift the focus from Halcyon's advantage to Whitmore's alleged shortcomings. Mr. Stokes should redirect firmly. He should not get drawn into defending Whitmore's proposal ratings, which are the subject of other protest grounds.
VII. Anticipated Cross-Examination Questions — Intervenor's Counsel (Theodore "Ted" J. Dunaway, Kessler, Pratt & Dunaway LLP)
Mr. Dunaway is an experienced and aggressive government contracts litigator. His cross-examination is expected to focus on the corporate separateness of Halcyon Analytical Services LLC and Halcyon Defense Systems Inc., the lack of direct evidence of information sharing between the two entities, and the argument that Mr. Stokes cannot identify specific solicitation requirements that were derived from the AoA study. Mr. Dunaway may also attempt to elicit admissions that Whitmore's proposal was competitive even without access to the AoA study, undermining the competitive prejudice argument. Associate Rachel N. Sorensen may participate in portions of this cross-examination.
A. Halcyon Analytical Services LLC vs. Halcyon Defense Systems Inc.
Question 1. You understand that Halcyon Analytical Services LLC is a separate legal entity from Halcyon Defense Systems Inc., correct?
Suggested response: I understand that they are organized as separate legal entities. However, Halcyon Analytical Services is a subsidiary of Halcyon Defense Systems Inc. They share common corporate ownership, and in my experience, parent companies and their subsidiaries typically share personnel, information systems, and business resources. The fact that they are organized as separate legal entities does not, by itself, mean that information from the AoA study was walled off from the parent company's proposal team.
Coaching note: Mr. Dunaway will try to use the separate-entity structure to suggest that there is no basis for imputing HAS's knowledge to Halcyon's Sensor Solutions Division. Mr. Stokes should acknowledge the separate-entity structure but immediately emphasize the practical reality of the parent-subsidiary relationship.
Question 2. Do you have any evidence that information from the AoA study was actually shared between Halcyon Analytical Services and Halcyon Defense Systems' Sensor Solutions Division?
Suggested response: I do not have direct evidence of internal information sharing because I am outside Halcyon's organization. I have no visibility into Halcyon's internal communications, personnel assignments, or information management practices. That is precisely why we requested the GAO to examine this issue. The corporate relationship between the AoA study performer and the production contract offeror creates an inherent risk of information flow, and it was the government's responsibility to ensure that risk was mitigated. Whether it was adequately mitigated is the question before the GAO.
Coaching note: This is a dangerous question because a simple "no" could undermine our position. Mr. Stokes should acknowledge the limitation of his knowledge (he is outside Halcyon) but reframe the question as one that underscores the need for GAO scrutiny. The absence of evidence of information sharing from Mr. Stokes's perspective does not mean it did not occur — it means it needs to be investigated.
Question 3. Are you aware of any firewalls that Halcyon implemented between its subsidiary and its proposal team?
Suggested response: I am not aware of the specifics of any internal firewalls, if they exist. Whitmore was never informed of such measures, and we had no opportunity to evaluate their adequacy.
Coaching note: Short and direct. Do not speculate about firewalls.
B. Specificity of Competitive Advantage
Question 4. Can you identify a single specific requirement in the solicitation that you believe Halcyon derived from the AoA study?
Suggested response: This question requires careful preparation based on Mr. Stokes's factual knowledge. If Mr. Stokes can identify one or two specific areas — for example, specific IRCM pod performance parameters, sensor integration specifications, or manufacturing readiness criteria in the solicitation that align closely with the publicly described scope of work of the AoA study — he should identify those areas with as much specificity as the facts permit.
If Mr. Stokes cannot identify specific provisions, he should acknowledge that limitation honestly but pivot to the structural point: "I cannot point to a single specific requirement and say with certainty that it was derived from the AoA study, because I have not seen the study. But the AoA study's publicly available scope of work — which describes analysis of next-generation IRCM pod requirements, including system performance parameters, sensor integration, and manufacturing readiness — closely mirrors the solicitation's technical requirements and evaluation criteria. The competitive advantage that access to the AoA study would provide does not have to be traceable to a single requirement. It is the comprehensive understanding of the government's requirements rationale and priorities that confers the advantage."
Coaching note: Critical. Mr. Stokes must not fabricate or speculate. If he cannot identify specifics, he should not try. But he should reframe the question to address the structural nature of the competitive advantage. Mr. Dunaway is trying to reduce the OCI theory to a requirement-by-requirement analysis, when in reality the advantage is systemic.
Question 5. Isn't it true that Whitmore was rated "Outstanding" on System Design and Integration and "Outstanding" on ITAR/Export Compliance? Your proposal was highly competitive even without access to the AoA study, wasn't it?
Suggested response: Whitmore submitted a strong proposal and a lower price. We are proud of the work our team did. But the question is not whether Whitmore performed well despite the disadvantage — it is whether Halcyon had an unfair advantage that affected the competition. An unfair advantage does not cease to exist simply because the disadvantaged competitor performed well. The relevant inquiry is whether the competition was fair, not whether Whitmore managed to be competitive in spite of the unfairness.
Coaching note: This is a flattery trap. Mr. Dunaway is trying to get Mr. Stokes to agree that Whitmore's strong performance undermines the competitive prejudice argument. Mr. Stokes should accept the compliment briefly but firmly redirect to the fairness question.
C. Attempts to Elicit Admissions Favorable to Halcyon
Question 6. You would agree that AoA studies are common in defense acquisitions?
Suggested response: Analysis of Alternatives studies are common in defense acquisitions, yes. But what is not common is for the entity that performs the AoA study to then turn around and compete for the resulting production contract. That is the concern here. It is not the existence of the AoA study that is the problem — it is the competitive participation of the study performer's parent company.
Coaching note: This question normalizes the AoA study to suggest there is nothing unusual about the situation. Mr. Stokes must immediately distinguish between the normalcy of AoA studies in general and the unusual circumstance of the study performer competing for the downstream contract.
Question 7. Do you have any reason to believe the Air Force acted in bad faith?
Suggested response: We are not alleging bad faith on the part of the Air Force. We are alleging that the Air Force's OCI mitigation was inadequate to address the structural conflict created by Halcyon's subsidiary having performed the AoA study. An OCI can exist even when all parties act in good faith. The issue is the structure of the situation and whether adequate steps were taken to ensure a level playing field.
Coaching note: This is a critical question. Alleging bad faith would raise the evidentiary bar significantly and could alienate the GAO decision-maker. Mr. Stokes must clearly and unequivocally disclaim any allegation of bad faith while redirecting to the structural OCI theory. This response should be rehearsed until it is second nature.
VIII. Areas to Avoid / Cautionary Instructions
The following cautionary instructions must be reviewed with Mr. Stokes during each preparation session and reinforced immediately before the hearing. These instructions are designed to prevent Mr. Stokes from inadvertently waiving privileges, disclosing protected material, venturing beyond the scope of the hearing, or making statements that could be used against Whitmore.
A. Do Not Discuss Grounds 1, 2, or 4
The January 4, 2024 hearing is limited to Ground 3 (Organizational Conflict of Interest). Mr. Stokes must not volunteer information, testimony, or opinions about the other protest grounds, which are being adjudicated on the written record:
• Ground 1: Best-Value Tradeoff Analysis — the allegation that the Source Selection Authority's tradeoff rationale was flawed.
• Ground 2: Unequal Discussions — the allegation that the Air Force conducted unequal discussions by issuing Evaluation Notices EN-WAL-001 and EN-WAL-002 to Whitmore while failing to issue comparable Evaluation Notices to Halcyon regarding, among other things, Supply Chain Risk Management and the Meridian Semiconductor GmbH subcontracting arrangement.
• Ground 4: Labor Rate Realism — the allegation that the Air Force failed to conduct an adequate realism analysis of Halcyon's proposed labor rates.
If cross-examiners attempt to draw Mr. Stokes into any of these areas, he should respond: "Those issues are addressed in our written submissions and are beyond the scope of this hearing, which is limited to the organizational conflict of interest issue."
B. Do Not Speculate on Contents of Protected Material
Mr. Stokes is not admitted under the GAO Protective Order issued in this case. Only outside counsel — Claudia Merritt, Nathan Yardley, and Megan Zhao — are admitted, along with the technical advisor, Janet K. Overmeyer of Ridgeline Consulting Group LLC.
Mr. Stokes has not seen and must not reference any protected or source-selection-sensitive material from the Agency Report, including Agency Report Tabs 1 through 47. This includes, but is not limited to, the Source Selection Evaluation Board ("SSEB") evaluation narratives, the Source Selection Decision Document ("SSDD"), the detailed evaluation scoring sheets, the individual evaluator worksheets, the OCI mitigation plan itself (to the extent it was designated as protected), and any correspondence between the Contracting Officer and Halcyon regarding OCI mitigation.
If asked about evaluation details during cross-examination, Mr. Stokes should limit his testimony to information that he received during the September 22, 2023 debriefing and information that is publicly available. He should not speculate about what the evaluation documents contain or what the evaluators considered.
C. Do Not Volunteer Financial Details Beyond What Is Public
Mr. Stokes should exercise caution with financial information. He should not volunteer Whitmore's specific evaluated price ($343.8 million) or Halcyon's specific evaluated price ($361.2 million) unless those figures are already part of the hearing record or were expressly disclosed during the debriefing in a manner that makes them publicly available.
Mr. Stokes may testify that Whitmore submitted a lower-priced proposal if that fact was disclosed during the debriefing. He may also testify about the general magnitude of the price differential if that information was disclosed. However, he should not cite specific dollar amounts unless he is confident that those amounts are non-protected and were part of the debriefing disclosure.
If asked about price figures by cross-examiners, Mr. Stokes should respond: "I can confirm that Whitmore's proposed price was lower than Halcyon's, as we were informed during the debriefing. I want to be careful not to disclose specific figures that may be protected."
D. Do Not Make Legal Conclusions
Mr. Stokes is a fact witness, not a legal expert. He should testify as to facts, observations, and professional experience, but he should not offer legal conclusions. Specifically:
• He should not state that "there was an organizational conflict of interest" or that "Halcyon had an OCI." The existence of an OCI is a legal conclusion that is for the GAO to determine.
• He should not state that "the Air Force violated FAR" or that "the Air Force's actions were unlawful." These are legal arguments that will be made by counsel in briefing.
• He should not cite specific FAR provisions, case law, or GAO precedent.
If pressed by cross-examiners to offer a legal conclusion, Mr. Stokes should reframe his answer as a factual observation. For example: "Based on my experience and knowledge, the fact that Halcyon's subsidiary performed the AoA study that informed this solicitation raised concerns about access to non-public information and competitive fairness. Whether that constitutes an organizational conflict of interest under the applicable regulations is a legal question that I'll leave to the attorneys."
E. Do Not Discuss Privileged Communications
Mr. Stokes must not describe, reference, or disclose any communications with Calderwood & Harkness attorneys, including conversations about case strategy, preparation sessions, the contents of this memorandum, or any other attorney work product or attorney-client communications.
If asked about communications with counsel during cross-examination, Mr. Stokes should state firmly: "I'm not able to discuss communications with my attorneys." If pressed, he should repeat this statement and, if necessary, our counsel will interpose an objection on privilege grounds.
F. Do Not Disparage Halcyon or the Air Force
Mr. Stokes must maintain a professional, measured, and respectful tone throughout his testimony. He should avoid any characterizations that could be perceived as personal attacks, accusations of dishonesty, or inflammatory language. Specifically:
• Do not use words like "cheating," "corruption," "rigged," "fraud," "dishonest," or similar terms.
• Do not impugn the personal integrity of any individual, including Greta M. Holloway, Col. Prescott, or any Halcyon or Air Force personnel.
• Frame all concerns in terms of structural OCI risk, process fairness, and the adequacy of mitigation measures — not in terms of wrongdoing or bad intent.
A measured tone is especially important in a GAO proceeding, where the decision-maker is a government attorney (Kenneth R. Woodley) who works regularly with agency counsel. Intemperate language will not be persuasive and could create a negative impression.
IX. Preparation Session Schedule
Three preparation sessions are scheduled with Mr. Stokes in advance of the January 4, 2024 hearing. The sessions are designed to progressively build Mr. Stokes's readiness, starting with a comprehensive review of the preparation materials, proceeding to a mock cross-examination, and concluding with a final run-through and logistics confirmation.
Session 1 — December 30, 2023 (Saturday), 10:00 AM – 12:30 PM
• Comprehensive review of this memorandum with Mr. Stokes, including all sections
• Walkthrough of the direct examination questions set forth in Section V, with Mr. Stokes practicing his responses
• Review of Mr. Stokes's September 26, 2023 declaration for consistency; identify any areas where the declaration and anticipated testimony diverge and resolve any inconsistencies
• Review of the cautionary instructions in Section VIII
• Identify any gaps in Mr. Stokes's factual knowledge that need to be addressed before the hearing