1019-00003 · Whitmore Aerospace LLC · Administration

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MEMORANDUM

Internal / Attorney-Client Privileged / Work Product

TO: Ian Blackwood, Billing Partner

FROM: Claudia Merritt, Responsible Partner

DATE: September 26, 2023

RE: Staffing and Resource Allocation — Matter No. 1019-00003: Whitmore Aerospace LLC GAO Bid Protest (B-422187; B-422187.2)

OFFICE: Calderwood & Harkness LLP, 1750 K Street NW, Suite 1100, Washington, D.C. 20006

This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for use by members of the Calderwood & Harkness LLP engagement team assigned to Matter No. 1019-00003. Do not distribute, copy, or forward this memorandum to any person not identified herein without the prior written approval of Claudia Merritt.

1. Purpose and Scope of Memorandum

The purpose of this memorandum is to document the engagement team composition, individual role assignments, and cross-practice coordination arrangements for the newly opened Government Accountability Office ("GAO") bid protest matter, Whitmore Aerospace LLC, B-422187; B-422187.2. This memorandum is intended to serve as the authoritative staffing and resource allocation record for Matter No. 1019-00003 and should be consulted by all team members to understand their respective responsibilities, reporting relationships, and workstream assignments throughout the pendency of the protest.

Matter No. 1019-00003 was opened today, September 26, 2023, coinciding with the filing of Whitmore Aerospace LLC's protest at the GAO. The protest challenges the United States Department of the Air Force's award of Contract No. FA8222-23-D-0193 — an indefinite-delivery, indefinite-quantity ("IDIQ") contract with a $387.5 million ceiling value for the production, testing, and sustainment of advanced Infrared Countermeasure ("IRCM") pod assemblies — to Halcyon Defense Systems Inc. The award was made under Solicitation No. FA8222-23-R-0087.

Client. The client is Whitmore Aerospace LLC, a Virginia limited liability company headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171. The Chief Executive Officer is Marcus J. Whitmore. The primary client contact for purposes of this engagement is Donald R. Stokes, Vice President, Government Contracts.

Engagement Number. 1019-00003.

GAO Case Number. B-422187; B-422187.2.

Conflicts Clearance. The firm's conflicts check was cleared on September 25, 2023. The conflicts search was run against all adverse and related parties, including Halcyon Defense Systems Inc., the United States Department of the Air Force (including the Air Force Life Cycle Management Center ("AFLCMC") Sensors Directorate), Marlowe Asset Management Electro-Optics Corp. (a former teaming partner of Whitmore that is no longer part of the offeror team), Kessler, Pratt & Dunaway LLP (counsel for the anticipated intervenor), and all known affiliated entities of the foregoing. No conflicts were identified.

This memorandum addresses the following topics: (i) the nature and scope of the protest and the anticipated workstreams; (ii) the cross-practice coordination structure; (iii) the individual team assignments and responsibilities; (iv) external resources engaged in support of the matter; (v) billing, fee cap management, and rate information; (vi) the supervision and reporting framework; (vii) key opposing counsel and agency personnel; (viii) document retention and security protocols; and (ix) initial action items and deadlines.

2. Matter Overview and Anticipated Workstreams

2.1 Nature of the Protest

Whitmore Aerospace LLC's protest raises four distinct grounds challenging the Air Force's award decision:

Ground 1 — Unreasonable Best-Value Tradeoff Analysis (FAR 15.308). Whitmore contends that the Source Selection Authority ("SSA"), Brigadier General Harlan T. Jeffcoat, USAF, failed to conduct a reasonable and adequately documented tradeoff analysis in awarding the contract to Halcyon Defense Systems Inc. at a higher evaluated price. Whitmore's evaluated total price was $343,800,000, while Halcyon's was $361,200,000 — a price differential of $17,400,000 (approximately 4.82%) favoring Whitmore. The Source Selection Decision Document ("SSDD") allegedly fails to articulate, with sufficient specificity, the benefits associated with Halcyon's technical proposal that warranted paying the $17.4 million price premium, particularly in light of the marginal differences in adjectival ratings between the two offerors under the Technical Approach and Management/Past Performance evaluation factors.

Ground 2 — Materially Unequal Discussions. Whitmore alleges that the Air Force conducted materially unequal discussions during the August 14–25, 2023 discussion period. Specifically, Whitmore contends that the discussions held with Whitmore were cursory and narrowly focused on a single past performance reference, while the Air Force conducted substantially more extensive and substantive discussions with Halcyon concerning multiple technical and management evaluation factors, thereby affording Halcyon a meaningful opportunity to cure weaknesses and deficiencies that Whitmore was not given a comparable opportunity to address.

Ground 3 — Organizational Conflict of Interest (OCI). Whitmore asserts that Halcyon Defense Systems Inc. benefited from an unmitigated organizational conflict of interest arising from the activities of Halcyon Analytical Services LLC, a wholly owned subsidiary of Halcyon that performed a prior Analysis of Alternatives ("AoA") study for the Air Force under Contract No. FA8222-21-C-0018, valued at approximately $2.3 million. Whitmore contends that the AoA study directly informed the requirements set forth in the solicitation, particularly under the Technical Approach factor, and that Halcyon had access — through its subsidiary — to nonpublic information that provided an unfair competitive advantage in the preparation of its proposal. The Air Force's OCI analysis and mitigation determination is challenged as unreasonable.

Ground 4 — Failure to Evaluate Realism of Halcyon's CLIN 0002 Labor Rates. Whitmore contends that the Air Force failed to evaluate the realism of Halcyon's proposed labor rates under CLIN 0002 (Engineering and Technical Support Services), as required by FAR 15.404-1(d). Whitmore alleges that Halcyon's proposed labor rates for certain key personnel categories are significantly below prevailing market rates and Bureau of Labor Statistics wage data for the relevant labor categories in the Dayton, Ohio metropolitan statistical area, and that the agency's failure to perform a meaningful realism analysis resulted in an award to an offeror whose proposed staffing plan is not executable at the proposed rates.

The underlying procurement was a competitive negotiated procurement conducted pursuant to FAR Part 15, with a best-value tradeoff evaluation methodology. The applicable NAICS Code is 336413 (Other Aircraft Parts and Auxiliary Equipment Manufacturing) and the Product and Service Code is 1270 (Aircraft Countermeasures). As noted above, Whitmore's evaluated total price of $343,800,000 was $17.4 million (4.82%) lower than Halcyon's evaluated total price of $361,200,000.

The Competition in Contracting Act ("CICA") automatic stay of contract performance is now in effect under 31 U.S.C. § 3553(c)(1). GAO's notice to the Air Force, which triggers the automatic stay, is expected to issue on September 27, 2023. Until and unless the stay is overridden by the head of the procuring activity pursuant to 31 U.S.C. § 3553(c)(2) or (d), the Air Force is prohibited from authorizing performance under the awarded contract.

2.2 Anticipated Workstreams

Based on the nature of the protest and the procedural posture of the matter, the engagement team will organize its work around the following six workstreams:

Workstream A — Pleadings and Briefing. This workstream encompasses the preparation of all written filings submitted to the GAO on behalf of Whitmore Aerospace LLC. The protest petition was filed on September 26, 2023. Anticipated future filings include the protester's comments on the agency report, any supplemental comments or supplemental protest, and potential hearing briefs (both pre-hearing and post-hearing). The pleadings and briefing workstream is the primary substantive workstream and will consume the greatest share of attorney time over the life of the engagement.

Workstream B — Protective Order and Document Review. This workstream covers the preparation and filing of the application for a GAO protective order, the administration of the protective order once issued, and the review of the agency report ("AR"), including the source selection documents, the Source Selection Evaluation Board ("SSEB") evaluation notes, the Contracting Officer's Statement of Facts, and all other AR tabs. Document review under this workstream is critical to the development of the protester's comments and to the refinement of our legal arguments. The agency report is expected to contain between 40 and 50 tabs of documents, many of which will be designated as protected or proprietary under the protective order.

Workstream C — ITAR/Export Compliance Overlay. This workstream addresses the analysis of International Traffic in Arms Regulations ("ITAR") and Export Administration Regulations ("EAR") compliance issues that are relevant to the evaluation of proposals under Factor 3(c) (ITAR/Export Compliance subfactor). This workstream also encompasses the analysis of Halcyon's reliance on Meridian Semiconductor GmbH, a German entity located in Dresden, Germany, as its sole-source supplier of gallium arsenide ("GaAs") sensor wafers. The ITAR/EAR compliance overlay intersects with the broader supply chain risk management analysis under Factor 3(b) and is relevant to both Ground 1 (tradeoff analysis) and the overall assessment of evaluation reasonableness.

Workstream D — OCI Investigation and Hearing Preparation. This workstream focuses on the factual development of Ground 3 — the organizational conflict of interest involving Halcyon Analytical Services LLC's prior AoA study — and preparation for a potential GAO hearing. The GAO frequently schedules hearings on OCI protest grounds, and we anticipate that a telephonic hearing may be ordered in this case. This workstream includes witness preparation, the development of cross-examination outlines for adverse witnesses, and the preparation of hearing briefs.

Workstream E — Legal Research. This workstream encompasses the preparation of precedent survey memoranda and other legal research products in support of the substantive workstreams. Principal research topics include GAO and federal court precedent on unequal discussions, best-value tradeoff documentation requirements under FAR 15.308, OCI standards and mitigation requirements, and labor rate realism evaluation under FAR 15.404-1(d).

Workstream F — Client Communications and Administration. This workstream covers status updates to client contacts, billing and fee cap tracking, administrative coordination, and general matter management. Regular status updates will be provided to Donald R. Stokes (VP, Government Contracts) and Marcus J. Whitmore (CEO). Billing-related communications will be directed to Patricia "Trish" Langford (CFO) as needed.

2.3 Anticipated Timeline

The following timeline sets forth the principal milestones anticipated in the protest proceeding. All dates are estimates and are subject to change based on the actual course of the proceeding:

• September 26, 2023: Protest petition filed at GAO.

• September 27, 2023 (estimated): GAO issues acknowledgment of protest filing and transmits notice to the Air Force, triggering the CICA automatic stay of contract performance under 31 U.S.C. § 3553(c)(1).

• Late October 2023 (approximately October 26, 2023): Agency report due, approximately 30 calendar days after the protest filing, subject to any extension requests by the agency or intervenor. The agency report will include the Contracting Officer's Statement of Facts, the SSEB evaluation notes, the SSDD, and all other documents bearing on the protest grounds.

• Mid-November 2023 (approximately November 9, 2023): Protester's comments on the agency report due within approximately 10 business days of receipt of the agency report.

• Late December 2023 – Early January 2024 (estimated): If a hearing is ordered by the GAO on Ground 3 (OCI) or any other ground, it is anticipated to take place in late December 2023 or early January 2024. Pre-hearing and post-hearing briefs would bracket the hearing date.

• Early January 2024 (approximately January 4, 2024): GAO's 100-day statutory decision deadline under 31 U.S.C. § 3554(a)(1), measured from the date of protest filing. The GAO's decision is expected to be issued on or before this date, though the GAO may exercise its authority to extend the decision period in appropriate circumstances.

• TBD: The GAO may schedule an alternative dispute resolution ("ADR") or outcome prediction conference at any point during the proceeding. If scheduled, such a conference would be conducted by the assigned GAO Senior Attorney, Angela M. Palermino.

3. Cross-Practice Coordination

3.1 Practice Groups Involved

This matter requires the coordinated efforts of attorneys from four of the firm's practice groups. The engagement team draws upon the following practices:

Banking & Finance. Claudia Merritt (Responsible Partner) and Ian Blackwood (Billing Partner) are both members of the firm's Banking & Finance practice group. Although the matter falls outside the core Banking & Finance subject-matter portfolio, Merritt has significant experience in government contracts disputes developed through prior cross-practice collaborations and has represented defense contractor clients in procurement-related disputes, including two prior GAO protests. Blackwood's role as Billing Partner is primarily financial and administrative in nature.

Government Contracts. Lt. Col. (Ret.) Nathan Yardley (Of Counsel) is the firm's Government Contracts practice group subject matter expert. Yardley is the primary substantive authority on FAR Part 15 source selection procedures, GAO protest procedures under 4 C.F.R. Part 21, CICA stay requirements, and the full range of legal issues raised by the four protest grounds. Yardley has handled more than 30 GAO protests over his career, including 11 sustained decisions, and has particular expertise in OCI protest grounds and best-value tradeoff challenges.

Litigation. Megan Zhao (Senior Associate) is drawn from the firm's Litigation practice group and provides hearing advocacy, adversarial brief drafting, and witness preparation expertise. Zhao's litigation background is essential given the likelihood of a GAO hearing on the OCI ground and the adversarial nature of briefing against experienced intervenor's counsel.

Privacy & Data Security. Alan Burke (Lead Associate) and Sara Hendricks (Working Associate) are members of the firm's Privacy & Data Security practice group. Burke and Hendricks bring expertise in ITAR and EAR regulatory frameworks that is directly relevant to the analysis of Factor 3(c) (ITAR/Export Compliance subfactor) and the export control dimensions of Halcyon's foreign subcontractor, Meridian Semiconductor GmbH.

3.2 Rationale for Cross-Practice Structure

The cross-practice staffing structure is necessitated by several features of the matter that require expertise beyond any single practice group:

Government Contracts Expertise. The central substantive questions in this protest — including the reasonableness of the best-value tradeoff analysis, the propriety of discussions, the OCI analysis, and the adequacy of cost/price realism evaluation — are core government contracts law issues. The firm's specialized government contracts expertise resides principally in Lt. Col. (Ret.) Yardley, who is a member of the Government Contracts practice group rather than Banking & Finance. Yardley's involvement is essential to ensure that the firm's legal arguments are grounded in current GAO precedent and reflect the nuances of FAR Part 15 source selection procedures.

ITAR/Export Compliance Issues. The evaluation criteria in Solicitation No. FA8222-23-R-0087 include Factor 3(c), an ITAR/Export Compliance subfactor, under which Whitmore received a rating of "Outstanding" and Halcyon received a rating of "Good." The evaluation of this subfactor is directly relevant to Ground 1 (tradeoff analysis), and the supply chain risk analysis under Factor 3(b) raises additional export control questions relating to Halcyon's reliance on Meridian Semiconductor GmbH, a German entity located at Königsbrücker Straße 142, 01099 Dresden, Germany, as its sole-source supplier of gallium arsenide (GaAs) sensor wafers. The Privacy & Data Security practice group's familiarity with the ITAR (22 C.F.R. Parts 120–130) and EAR (15 C.F.R. Parts 730–774) regulatory frameworks makes Burke and Hendricks well-suited to analyze these issues.

Litigation Skills. The anticipated GAO hearing on Ground 3 (OCI), likely to be conducted telephonically, requires traditional litigation skills including witness preparation, cross-examination, and adversarial briefing. Megan Zhao's litigation experience, including her prior experience with administrative hearings, equips her to manage the hearing preparation workstream. Her skills are particularly important given that the intervenor is represented by Kessler, Pratt & Dunaway LLP, a well-resourced government contracts boutique. The lead partner on Halcyon's team, Theodore "Ted" J. Dunaway, is an experienced GAO practitioner, and his associate, Rachel N. Sorensen, is known for thorough and aggressive intervenor briefing. Agency counsel consists of Captain Lucas M. Hargrove, USAF, JAG, a trial attorney in the Air Force Judge Advocate General's Corps, and Miriam T. Castellano, Senior Attorney in the Office of the General Counsel, Secretary of the Air Force (SAF/GCQ). Zhao's advocacy skills will be critical in confronting this level of opposition.

4. Team Assignments

4.1 Claudia Merritt — Responsible Partner

Practice Group: Banking & Finance

Billing Rate: $695/hour

Role: Responsible Partner; overall engagement supervision, strategic direction, and client relationship management.

Key Responsibilities:

(a) Serve as the primary signatory on all GAO filings, including the protest petition (filed September 26, 2023), protester's comments on the agency report, supplemental comments, hearing briefs, and any other submissions made to the GAO on behalf of Whitmore Aerospace LLC.

(b) Serve as the lead on client communications with Marcus J. Whitmore, Chief Executive Officer, and Donald R. Stokes, Vice President, Government Contracts. All significant strategic communications with the client should be routed through or coordinated with Merritt prior to delivery.

(c) Conduct final review and approval of all pleadings and submissions prior to filing. No document shall be filed at the GAO without Merritt's express approval, unless she has specifically delegated filing authority for a particular submission.

(d) Participate in protective order proceedings as admitted counsel under the GAO protective order. Upon issuance of the protective order, Merritt will be one of the attorneys authorized to access protected and proprietary material produced by the agency and the intervenor.

(e) Attend GAO ADR conferences and key procedural events, including any outcome prediction conference scheduled by Senior Attorney Angela M. Palermino.

(f) Coordinate with the Billing Partner (Blackwood) on fee cap management, including reviewing fee burn rates against the voluntary fee cap and making staffing adjustments as necessary to ensure compliance.

(g) Serve as the engagement team's primary point of contact for firm management on matters relating to this engagement.

4.2 Ian Blackwood — Billing Partner

Practice Group: Banking & Finance

Billing Rate: $695/hour

Role: Billing Partner; financial oversight of engagement.

Key Responsibilities:

(a) Conduct monthly review of time entries and billing summaries for all timekeepers assigned to Matter No. 1019-00003. Review should include verification that all entries are properly coded with the correct matter number and appropriate task codes for each workstream.

(b) Monitor compliance with the voluntary fee cap of $425,000 (attorneys' fees only, exclusive of out-of-pocket costs). Blackwood will maintain a fee cap tracking workbook that is updated at least weekly and will alert Merritt whenever cumulative fees reach 50%, 75%, and 90% of the fee cap threshold.

(c) Approve expense disbursements, including expert consultant fees (Ridgeline Consulting Group LLC), travel expenses, hearing and deposition transcripts, filing and reproduction costs, and courier/overnight delivery charges. All expense disbursements in excess of $1,000 require Blackwood's prior approval.

(d) Serve as liaison with Whitmore's Chief Financial Officer, Patricia "Trish" Langford, on billing matters as needed. Blackwood should coordinate with Merritt prior to any billing-related communications with Langford to ensure alignment with the client relationship.

(e) Maintain limited substantive involvement in the matter. Blackwood is available for strategic consultation on complex procedural questions and will participate in team calls on an as-needed basis, but is not expected to perform substantive legal work on the protest. This limited-involvement arrangement is designed to minimize fee cap consumption by partner-level hours.

4.3 Lt. Col. (Ret.) Nathan Yardley — Of Counsel, Subject Matter Lead

Practice Group: Government Contracts

Billing Rate: $475/hour

Role: Subject matter lead on all government contracts law issues; primary drafter and strategist.

Key Responsibilities:

(a) Serve as the lead drafter of the protest petition (filed September 26, 2023), protester's comments on the agency report, supplemental comments, and hearing briefs (pre-hearing and post-hearing). Yardley is responsible for the substantive legal content of all filings, subject to Merritt's final review and approval.

(b) Serve as the primary analyst of the agency report upon receipt, including the Contracting Officer's Statement of Facts, the SSEB evaluation notes and consensus reports, the Source Selection Decision Document ("SSDD"), the cost/price evaluation records, the OCI analysis and determination, and all other AR tabs. Yardley will direct the associate-level document review (Hendricks) and will personally review all documents bearing on the four protest grounds.

(c) Develop the legal arguments on all four protest grounds, with particular emphasis on Ground 1 (unreasonable tradeoff under FAR 15.308) and Ground 2 (unequal discussions). Yardley will prepare the analytical framework for each ground and will ensure that arguments are grounded in current GAO precedent and consistent with the Comptroller General's recent decisions on analogous issues.

(d) Conduct a detailed assessment of the OCI ground (Ground 3), including analysis of the nature and scope of Halcyon Analytical Services LLC's prior AoA study under Contract No. FA8222-21-C-0018, the relationship between the AoA study deliverables and the solicitation requirements, and the adequacy of the agency's OCI analysis and mitigation determination. Yardley will coordinate with Zhao on the factual development and hearing preparation aspects of this ground.

(e) Supervise associate-level legal research by directing Burke and Hendricks on precedent surveys and research memoranda. Yardley will review all research products before they are incorporated into filings or relied upon for strategic decisions.

(f) Participate in protective order proceedings as admitted counsel under the GAO protective order. Upon issuance, Yardley will be authorized to access protected and proprietary material.

(g) Coordinate with Megan Zhao on hearing preparation and post-hearing briefing, including the development of direct and cross-examination outlines, the identification and preparation of witnesses, and the preparation of hearing briefs.

(h) Serve as the primary liaison with the outside expert consultant, Janet K. Overmeyer of Ridgeline Consulting Group LLC (4501 Fairfax Drive, Suite 200, Arlington, Virginia 22203), on technical evaluation issues, particularly those arising under the Manufacturing Readiness subfactor. Yardley will coordinate with Overmeyer on her review of agency report documents (if she is admitted as a technical advisor under the protective order), potential supplemental declarations, and consultation on technical discriminators between the Whitmore and Halcyon proposals.

(i) Review Agency Report Tabs for proper designation of protected and proprietary material under the GAO Protective Order, and flag any over-designation or under-designation issues for Merritt's attention.

4.4 Megan Zhao — Senior Associate, Hearing Preparation and Brief Drafting

Practice Group: Litigation

Billing Rate: $385/hour

Role: Hearing advocacy, brief drafting, and witness preparation.

Key Responsibilities:

(a) Draft hearing brief(s) and post-hearing brief for Ground 3 (OCI) and any other grounds set for hearing by the GAO. Hearing briefs will be prepared in coordination with Yardley and will be subject to Merritt's final review and approval.

(b) Prepare witness Donald R. Stokes, Vice President, Government Contracts, for GAO hearing testimony. The hearing is anticipated to be conducted telephonically, consistent with the GAO's standard practice. Witness preparation sessions should be scheduled sufficiently in advance of the hearing date to allow for iterative preparation, including at least one full mock examination session.

(c) Develop cross-examination outlines for anticipated adverse witnesses. Based on our current assessment, the adverse witnesses most likely to testify at a hearing on the OCI ground include: (i) Greta M. Holloway, President of Halcyon's Sensor Solutions Division, who is expected to testify regarding the firewalls and mitigation measures implemented to prevent the flow of nonpublic information from Halcyon Analytical Services LLC to the proposal team; and (ii) Colonel Diane W. Prescott, USAF, the Contracting Officer for the AFLCMC Sensors Directorate at Wright-Patterson Air Force Base, who is expected to testify regarding the agency's OCI analysis and mitigation determination.

(d) Support the drafting of the protester's comments on the agency report and supplemental comments, particularly sections addressing the factual development of the OCI ground and any Ground 2 (unequal discussions) arguments that are informed by the agency report documents.

(e) Participate in protective order proceedings as admitted counsel under the GAO protective order. Upon issuance, Zhao will be authorized to access protected and proprietary material.

(f) Coordinate with Yardley on legal argumentation strategy, ensuring that the hearing presentation is fully aligned with the written briefing and that the hearing record supports the arguments advanced in the post-hearing brief.

(g) Support preparation for any ADR conference or outcome prediction conference scheduled by the GAO. If such a conference is scheduled with GAO Senior Attorney Angela M. Palermino, Zhao will assist Merritt and Yardley in preparing the presentation of Whitmore's position and the anticipated evidentiary support.

4.5 Alan Burke — Lead Associate, ITAR/EAR Compliance Overlay

Practice Group: Privacy & Data Security

Billing Rate: $315/hour

Role: Lead on ITAR and EAR compliance analysis relevant to the protest evaluation factors.

Key Responsibilities:

(a) Conduct a comprehensive analysis of Factor 3(c) (ITAR/Export Compliance subfactor), under which Whitmore received an evaluation rating of "Outstanding" and Halcyon received a rating of "Good." Burke will analyze the significance of the rating differential and its impact on the overall Factor 3 evaluation and the tradeoff analysis.

(b) Assess the requirements of CDRL A015 (ITAR Compliance Plan), which was added to the solicitation by Amendment 0002, issued April 28, 2023. Burke will analyze how each offeror's ITAR compliance plan was evaluated and whether the agency's evaluation of the respective compliance plans was reasonable and consistent with the stated evaluation criteria in Section M.

(c) Analyze the export control implications arising from Halcyon's reliance on Meridian Semiconductor GmbH (Königsbrücker Straße 142, 01099 Dresden, Germany) as its sole-source supplier of gallium arsenide (GaAs) sensor wafers. This analysis will address the intersection of export control requirements with the Factor 3(b) Supply Chain Risk Management evaluation, including the adequacy of Halcyon's proposed approach to managing the ITAR/EAR compliance risks associated with the use of a foreign sole-source supplier for a critical component.

(d) Prepare an internal ITAR/Export Compliance Analysis Memorandum summarizing the findings of the above analyses. This memorandum will be circulated to Merritt, Yardley, and Zhao and will serve as the foundation for the ITAR/export compliance arguments in the protester's comments.

(e) Conduct legal research on best-value tradeoff documentation requirements under FAR 15.308, with a focus on GAO precedent addressing the documentation of tradeoffs involving technical subfactors with export control or ITAR compliance dimensions. Burke will prepare a precedent survey memorandum on this topic.

(f) Support the drafting of protester's comments sections addressing the Factor 3 evaluation, particularly the sections relating to Factor 3(c) and Factor 3(b).

(g) Review solicitation amendments, with particular attention to Amendment 0002 (April 28, 2023), and the Section M evaluation criteria for export compliance dimensions. Burke will prepare a summary of the evaluation criteria relevant to the ITAR/EAR compliance overlay for the team's reference.

4.6 Sara Hendricks — Working Associate, Research and Document Review

Practice Group: Privacy & Data Security

Billing Rate: $315/hour

Role: Primary research attorney and document review support.

Key Responsibilities:

(a) Conduct legal research on GAO precedent addressing unequal discussions. Hendricks will prepare a comprehensive precedent survey memorandum identifying and analyzing the key GAO and Court of Federal Claims decisions on the standards for establishing materially unequal discussions, including the distinction between discussions and clarifications, the standard for demonstrating prejudice, and the burden of proof in unequal discussions challenges. This memorandum should be completed by October 5, 2023.

(b) Upon receipt of the agency report, conduct a review and indexing of all agency report documents (anticipated AR Tabs 1 through approximately 47). Hendricks will prepare an AR Index summarizing the contents of each tab, flagging documents of particular relevance to the four protest grounds, and identifying any documents that appear to be missing or incomplete.

(c) Maintain the factual chronology for the matter. Hendricks will update and expand the client intake memorandum chronology as new facts emerge from the agency report, from communications with the client, and from other sources. The chronology will serve as a reference tool for the entire team.

(d) Perform cite-checking and proofreading of all GAO filings prior to submission. All draft filings should be routed to Hendricks for a final cite-check and proofread before being submitted to Merritt for final approval.

(e) Assist with protective order document management, including the marking of protected documents, the tracking of document access, and the maintenance of secure storage protocols in accordance with the Internal Memorandum on Protective Order Handling Procedures (to be issued).

(f) Provide research support to Burke on ITAR/EAR-related legal issues as needed, including research on the regulatory framework governing technical data, defense articles, and defense services under the ITAR and the controlled items and technologies regulated under the EAR.

(g) Perform general research assignments as directed by Yardley and Merritt, including research on OCI standards, labor rate realism evaluation under FAR 15.404-1(d), and any other topics that arise during the course of the protest.

5. External Resources

5.1 Expert Consultant — Ridgeline Consulting Group LLC

Principal: Janet K. Overmeyer

Office: 4501 Fairfax Drive, Suite 200, Arlington, Virginia 22203

Role: Ms. Overmeyer assisted Whitmore Aerospace LLC in preparing its technical and management proposal volumes in response to Solicitation No. FA8222-23-R-0087. She is a former Air Force acquisition professional with extensive experience in manufacturing readiness assessments for electro-optical and infrared countermeasure systems. Ms. Overmeyer has already provided a sworn declaration that was filed with the protest petition on September 26, 2023, opining on the Manufacturing Readiness evaluation methodology employed by the SSEB and the reasonableness of the ratings assigned under the Manufacturing Readiness subfactor.

Anticipated Additional Work: Overmeyer's anticipated additional work for this engagement includes: (i) review of agency report evaluation documents, if she is admitted as a technical advisor under the GAO protective order; (ii) preparation of a potential supplemental declaration, if warranted by the contents of the agency report; and (iii) ongoing consultation with Yardley on technical discriminators between the Whitmore and Halcyon proposals, particularly as they relate to the Manufacturing Readiness and Technical Approach subfactors.

Budget: Ridgeline Consulting Group's fees will be tracked as a protest cost and are not included in the voluntary fee cap of $425,000 (which applies to attorneys' fees only). The estimated cost for Ridgeline's engagement is approximately $8,200, based on the anticipated scope of work. This estimate is subject to revision based on actual hours incurred and the extent of Overmeyer's involvement in agency report review and supplemental declaration preparation.

5.2 Client-Side Contacts

The following client-side personnel are the designated points of contact for purposes of this engagement:

Donald R. Stokes, Vice President, Government Contracts — Mr. Stokes is the primary day-to-day client contact and the principal source of factual information regarding Whitmore's proposal, the procurement process, and the discussions conducted by the Air Force. Mr. Stokes is also a potential hearing witness and will be prepared by Zhao for GAO hearing testimony if a hearing is ordered.

Marcus J. Whitmore, Chief Executive Officer — Mr. Whitmore is the engagement-level decision maker and should be included in all strategic communications regarding the direction of the protest, settlement or alternative dispute resolution opportunities, and any significant developments in the proceeding.

Patricia "Trish" Langford, Chief Financial Officer — Ms. Langford is the designated contact for billing and financial matters. All invoices and billing inquiries should be directed to her attention, coordinated through Blackwood.

6. Billing and Fee Cap Management

The billing and fee cap management arrangements for Matter No. 1019-00003 are as follows:

Voluntary Fee Cap. The engagement is subject to a voluntary fee cap of $425,000, covering attorneys' fees only. The fee cap does not include out-of-pocket costs such as expert consultant fees (Ridgeline Consulting Group LLC), hearing or deposition transcripts, travel expenses, filing and reproduction costs, or courier/overnight delivery charges. The fee cap was agreed upon in connection with the engagement letter executed between the firm and Whitmore Aerospace LLC.

Rate Structure. The engagement utilizes a blended rate structure, with the following hourly billing rates applicable to each timekeeper level:

Fee Cap Tracking. Ian Blackwood will review monthly billing summaries and will maintain a fee cap tracking workbook that monitors cumulative fees against the $425,000 cap on a rolling basis. The tracking workbook will be updated at least weekly and will include a breakdown of hours and fees by timekeeper and by workstream. Blackwood will alert Merritt whenever cumulative fees reach the 50%, 75%, and 90% thresholds of the fee cap.

Estimated Total Hours. Given the complexity of the four-ground protest, the anticipated agency report review, the potential hearing, and the adversarial briefing, total attorney hours for the engagement are estimated at approximately 800 or more hours across the team. Close monitoring is required to ensure that the team remains within the $425,000 fee cap. The allocation of hours across timekeepers will need to be carefully managed, with an emphasis on leveraging the lower-rate associates (Burke and Hendricks at $315/hour) and the Of Counsel (Yardley at $475/hour) for the bulk of substantive work, while limiting partner-level hours (Merritt and Blackwood at $695/hour) to supervision, client communications, and strategic decision-making.

Task Codes. All timekeepers are required to use matter number 1019-00003 and the appropriate task codes for each workstream when recording time entries. The task codes for each workstream are as follows:

Anticipated Out-of-Pocket Expenses. The following categories of out-of-pocket expenses are anticipated for this engagement and are excluded from the fee cap:

• Expert consultant fees — Ridgeline Consulting Group LLC (Janet K. Overmeyer), estimated at approximately $8,200.

• Hearing and/or deposition transcripts, if a hearing is ordered by the GAO.

• Potential travel to Wright-Patterson Air Force Base, Dayton, Ohio, for document inspection, if in-person inspection of source selection documents is required or advantageous.

• Electronic filing fees and document reproduction costs.

• Courier and overnight delivery charges for filings and document transmissions.

All expense disbursements in excess of $1,000 require Blackwood's prior approval, as noted in Section 4.2 above.

7. Supervision and Reporting Structure

The supervision and reporting structure for the engagement team is designed to ensure efficient coordination across practice groups while maintaining clear lines of authority and accountability. The structure is as follows:

Claudia Merritt (Responsible Partner) supervises all team members and approves all final work product. Merritt has ultimate authority over strategic decisions, client communications, and the content of all filings. All team members report to Merritt, either directly or through intermediate supervisors as described below.

Lt. Col. (Ret.) Nathan Yardley (Of Counsel, Subject Matter Lead) serves as the day-to-day substantive lead for the engagement. Yardley directs research assignments to Burke and Hendricks, coordinates with Zhao on hearing-related work, and is responsible for ensuring that the substantive legal work is conducted efficiently and is consistent with the overall strategy approved by Merritt. Yardley reports to Merritt on all substantive and strategic matters.

Megan Zhao (Senior Associate) operates semi-independently on the hearing preparation workstream (Workstream D), under the joint supervision of Merritt and Yardley. Zhao coordinates with Yardley on the integration of hearing-related work with the broader briefing strategy and reports to Merritt on witness preparation and hearing logistics.

Alan Burke (Lead Associate) reports to Yardley on substantive government contracts work (including the precedent survey on tradeoff documentation requirements) and reports to Merritt on the ITAR/EAR compliance overlay (Workstream C). Burke operates with a dual reporting structure that reflects his cross-practice role.

Sara Hendricks (Working Associate) reports to Yardley on research assignments and general document review, and reports to Burke on ITAR/EAR-related research support. Hendricks is the most junior member of the team and should direct questions regarding priorities and assignment sequencing to Yardley in the first instance.

Weekly Team Calls. Weekly internal team calls will be scheduled for Tuesdays at 4:00 p.m. Eastern Time, commencing September 28, 2023 (adjusted to Thursday for the initial call due to the Tuesday proximity to the filing date). These calls will be used to coordinate workstreams, review upcoming deadlines, address cross-practice issues, and ensure that all team members are aligned on the current status of the matter. All team members are expected to attend, with the exception of Blackwood, who will attend on an as-needed basis.

Billing Snapshots. Blackwood will receive weekly billing snapshots reflecting cumulative hours and fees by timekeeper, and comprehensive monthly billing summaries reflecting hours, fees, and expenses by workstream and by timekeeper. Monthly summaries will be provided to Blackwood by the first business day of each month.

8. Key Opposing Counsel and Agency Personnel

The following individuals have been identified as key opposing counsel and agency personnel for purposes of this protest:

Intervenor's Counsel (Halcyon Defense Systems Inc.)

Firm: Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102.

Lead Partner: Theodore "Ted" J. Dunaway. Dunaway is a well-known government contracts litigator with extensive GAO protest experience. He is expected to lead Halcyon's defense of the award.

Associate: Rachel N. Sorensen. Sorensen is expected to handle the day-to-day briefing and research on behalf of Halcyon.

Status: Halcyon Defense Systems Inc. filed its notice of intervention on October 2, 2023, through Kessler, Pratt & Dunaway LLP.

Agency Counsel (United States Department of the Air Force)

Trial Attorney: Captain Lucas M. Hargrove, USAF, Judge Advocate General's Corps. Capt. Hargrove is assigned as the trial attorney representing the Air Force in this protest.

Senior Attorney: Miriam T. Castellano, Senior Attorney, Office of the General Counsel, Secretary of the Air Force (SAF/GCQ). Ms. Castellano provides civilian legal support to the Air Force's defense of the procurement.

Key Agency Personnel

Contracting Officer: Colonel Diane W. Prescott, USAF, AFLCMC Sensors Directorate, Wright-Patterson Air Force Base, Ohio 45433. Col. Prescott is the Contracting Officer for Solicitation No. FA8222-23-R-0087 and the signatory on the award decision. She is an anticipated adverse witness at any hearing on the OCI ground.

Contract Specialist: Vincent R. Talmadge. Mr. Talmadge served as the Contract Specialist supporting the procurement and may have relevant knowledge regarding the conduct of discussions and the administration of the OCI review process.

Source Selection Authority: Brigadier General Harlan T. Jeffcoat, USAF. BGen Jeffcoat served as the Source Selection Authority and signed the Source Selection Decision Document. His tradeoff rationale is the primary target of Ground 1 of the protest.

SSEB Chair: Dr. Yolanda R. Fenn. Dr. Fenn chaired the Source Selection Evaluation Board and oversaw the technical and management evaluation panels. Her evaluation methodology and consensus determinations are relevant to multiple protest grounds.

GAO Attorney.

Assigned Attorney: Angela M. Palermino, Senior Attorney, Procurement Law Division, U.S. Government Accountability Office. Ms. Palermino is the GAO attorney assigned to B-422187 and B-422187.2 and will manage all procedural aspects of the protest, including scheduling, protective order administration, and any ADR or outcome prediction conference.

9. Document Retention and Security

All documents related to Matter No. 1019-00003 shall be maintained in the firm's secure document management system in accordance with the firm's standard document retention policies and the following matter-specific requirements:

Protected and Proprietary Material. Protected and proprietary material received under the GAO Protective Order shall be handled pursuant to a separate Internal Memorandum on Protective Order Handling Procedures, which will be prepared and circulated to the team promptly after the protective order is issued. The Internal Memorandum will address the specific requirements for storage, access, marking, and disposition of protected material, consistent with the terms of the protective order.

Access Restrictions. Only counsel admitted under the GAO Protective Order may access protected and proprietary material produced in connection with the agency report or by the intervenor. As of the date of this memorandum, the attorneys designated for admission under the protective order are:

• Claudia Merritt (Responsible Partner)

• Lt. Col. (Ret.) Nathan Yardley (Of Counsel)

• Megan Zhao (Senior Associate)

In addition, the outside expert consultant, Janet K. Overmeyer of Ridgeline Consulting Group LLC, may be admitted as a technical advisor under the protective order, if the team determines that her access to protected material is necessary for the development of technical arguments and supplemental declarations.

Personnel Not Admitted Under Protective Order. The following team members are not admitted under the protective order and must not access protected or proprietary documents under any circumstances:

• Alan Burke (Lead Associate)

• Sara Hendricks (Working Associate)

• Ian Blackwood (Billing Partner)

The exclusion of Burke and Hendricks from protective order access is a practical limitation that must be managed carefully. Yardley, Zhao, and Merritt will need to prepare redacted summaries or non-protected analyses for Burke and Hendricks where their input is needed on issues implicating protected material.

Client Personnel. Client personnel, including Donald R. Stokes, Marcus J. Whitmore, and Patricia "Trish" Langford, may not access protected or proprietary material received under the GAO Protective Order. Client access restrictions are a standard feature of GAO protective orders and are required to prevent the competitive use of an opponent's proprietary proposal information.

10. Initial Action Items and Deadlines

The following table sets forth the initial action items for the engagement team and the associated deadlines. This list will be supplemented and updated as the proceeding progresses.

Additional action items will be identified and assigned at the initial team call and at weekly team calls thereafter. All team members should maintain individual task lists and should promptly communicate any deadline concerns or resource constraints to Yardley or Merritt.

11. Closing

This memorandum documents the engagement team composition, individual role assignments, workstream allocations, and administrative arrangements for Matter No. 1019-00003 as of the date of filing. The memorandum will be updated as staffing needs evolve during the course of the protest. Anticipated circumstances that may trigger updates include the receipt of the agency report, the scheduling of a hearing, changes in the scope of the protest (such as the filing of a supplemental protest), and resource constraints arising from fee cap management.

Any requests for additional resources — including but not limited to contract attorney support for agency report document review, the engagement of additional associates for research-intensive periods, or the retention of additional expert consultants — must be approved by both Merritt and Blackwood in light of the voluntary fee cap constraints. Requests for additional resources should be accompanied by a brief memorandum identifying the need, the estimated hours and cost, and the impact on the fee cap.

Copies of this memorandum have been distributed to all team members:

MEMORANDUM
Internal / Attorney-Client Privileged / Work Product
TO: Ian Blackwood, Billing Partner
FROM: Claudia Merritt, Responsible Partner
DATE: September 26, 2023
RE: Staffing and Resource Allocation — Matter No. 1019-00003: Whitmore Aerospace LLC GAO Bid Protest (B-422187; B-422187.2)
OFFICE: Calderwood & Harkness LLP, 1750 K Street NW, Suite 1100, Washington, D.C. 20006
This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for use by members of the Calderwood & Harkness LLP engagement team assigned to Matter No. 1019-00003. Do not distribute, copy, or forward this memorandum to any person not identified herein without the prior written approval of Claudia Merritt.
1. Purpose and Scope of Memorandum
The purpose of this memorandum is to document the engagement team composition, individual role assignments, and cross-practice coordination arrangements for the newly opened Government Accountability Office ("GAO") bid protest matter, Whitmore Aerospace LLC, B-422187; B-422187.2. This memorandum is intended to serve as the authoritative staffing and resource allocation record for Matter No. 1019-00003 and should be consulted by all team members to understand their respective responsibilities, reporting relationships, and workstream assignments throughout the pendency of the protest.
Matter No. 1019-00003 was opened today, September 26, 2023, coinciding with the filing of Whitmore Aerospace LLC's protest at the GAO. The protest challenges the United States Department of the Air Force's award of Contract No. FA8222-23-D-0193 — an indefinite-delivery, indefinite-quantity ("IDIQ") contract with a $387.5 million ceiling value for the production, testing, and sustainment of advanced Infrared Countermeasure ("IRCM") pod assemblies — to Halcyon Defense Systems Inc. The award was made under Solicitation No. FA8222-23-R-0087.
Client. The client is Whitmore Aerospace LLC, a Virginia limited liability company headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171. The Chief Executive Officer is Marcus J. Whitmore. The primary client contact for purposes of this engagement is Donald R. Stokes, Vice President, Government Contracts.
Engagement Number. 1019-00003.
GAO Case Number. B-422187; B-422187.2.
Conflicts Clearance. The firm's conflicts check was cleared on September 25, 2023. The conflicts search was run against all adverse and related parties, including Halcyon Defense Systems Inc., the United States Department of the Air Force (including the Air Force Life Cycle Management Center ("AFLCMC") Sensors Directorate), Marlowe Asset Management Electro-Optics Corp. (a former teaming partner of Whitmore that is no longer part of the offeror team), Kessler, Pratt & Dunaway LLP (counsel for the anticipated intervenor), and all known affiliated entities of the foregoing. No conflicts were identified.
This memorandum addresses the following topics: (i) the nature and scope of the protest and the anticipated workstreams; (ii) the cross-practice coordination structure; (iii) the individual team assignments and responsibilities; (iv) external resources engaged in support of the matter; (v) billing, fee cap management, and rate information; (vi) the supervision and reporting framework; (vii) key opposing counsel and agency personnel; (viii) document retention and security protocols; and (ix) initial action items and deadlines.
2. Matter Overview and Anticipated Workstreams
2.1 Nature of the Protest
Whitmore Aerospace LLC's protest raises four distinct grounds challenging the Air Force's award decision:
Ground 1 — Unreasonable Best-Value Tradeoff Analysis (FAR 15.308). Whitmore contends that the Source Selection Authority ("SSA"), Brigadier General Harlan T. Jeffcoat, USAF, failed to conduct a reasonable and adequately documented tradeoff analysis in awarding the contract to Halcyon Defense Systems Inc. at a higher evaluated price. Whitmore's evaluated total price was $343,800,000, while Halcyon's was $361,200,000 — a price differential of $17,400,000 (approximately 4.82%) favoring Whitmore. The Source Selection Decision Document ("SSDD") allegedly fails to articulate, with sufficient specificity, the benefits associated with Halcyon's technical proposal that warranted paying the $17.4 million price premium, particularly in light of the marginal differences in adjectival ratings between the two offerors under the Technical Approach and Management/Past Performance evaluation factors.
Ground 2 — Materially Unequal Discussions. Whitmore alleges that the Air Force conducted materially unequal discussions during the August 14–25, 2023 discussion period. Specifically, Whitmore contends that the discussions held with Whitmore were cursory and narrowly focused on a single past performance reference, while the Air Force conducted substantially more extensive and substantive discussions with Halcyon concerning multiple technical and management evaluation factors, thereby affording Halcyon a meaningful opportunity to cure weaknesses and deficiencies that Whitmore was not given a comparable opportunity to address.
Ground 3 — Organizational Conflict of Interest (OCI). Whitmore asserts that Halcyon Defense Systems Inc. benefited from an unmitigated organizational conflict of interest arising from the activities of Halcyon Analytical Services LLC, a wholly owned subsidiary of Halcyon that performed a prior Analysis of Alternatives ("AoA") study for the Air Force under Contract No. FA8222-21-C-0018, valued at approximately $2.3 million. Whitmore contends that the AoA study directly informed the requirements set forth in the solicitation, particularly under the Technical Approach factor, and that Halcyon had access — through its subsidiary — to nonpublic information that provided an unfair competitive advantage in the preparation of its proposal. The Air Force's OCI analysis and mitigation determination is challenged as unreasonable.
Ground 4 — Failure to Evaluate Realism of Halcyon's CLIN 0002 Labor Rates. Whitmore contends that the Air Force failed to evaluate the realism of Halcyon's proposed labor rates under CLIN 0002 (Engineering and Technical Support Services), as required by FAR 15.404-1(d). Whitmore alleges that Halcyon's proposed labor rates for certain key personnel categories are significantly below prevailing market rates and Bureau of Labor Statistics wage data for the relevant labor categories in the Dayton, Ohio metropolitan statistical area, and that the agency's failure to perform a meaningful realism analysis resulted in an award to an offeror whose proposed staffing plan is not executable at the proposed rates.
The underlying procurement was a competitive negotiated procurement conducted pursuant to FAR Part 15, with a best-value tradeoff evaluation methodology. The applicable NAICS Code is 336413 (Other Aircraft Parts and Auxiliary Equipment Manufacturing) and the Product and Service Code is 1270 (Aircraft Countermeasures). As noted above, Whitmore's evaluated total price of $343,800,000 was $17.4 million (4.82%) lower than Halcyon's evaluated total price of $361,200,000.
The Competition in Contracting Act ("CICA") automatic stay of contract performance is now in effect under 31 U.S.C. § 3553(c)(1). GAO's notice to the Air Force, which triggers the automatic stay, is expected to issue on September 27, 2023. Until and unless the stay is overridden by the head of the procuring activity pursuant to 31 U.S.C. § 3553(c)(2) or (d), the Air Force is prohibited from authorizing performance under the awarded contract.
2.2 Anticipated Workstreams
Based on the nature of the protest and the procedural posture of the matter, the engagement team will organize its work around the following six workstreams:
Workstream A — Pleadings and Briefing. This workstream encompasses the preparation of all written filings submitted to the GAO on behalf of Whitmore Aerospace LLC. The protest petition was filed on September 26, 2023. Anticipated future filings include the protester's comments on the agency report, any supplemental comments or supplemental protest, and potential hearing briefs (both pre-hearing and post-hearing). The pleadings and briefing workstream is the primary substantive workstream and will consume the greatest share of attorney time over the life of the engagement.
Workstream B — Protective Order and Document Review. This workstream covers the preparation and filing of the application for a GAO protective order, the administration of the protective order once issued, and the review of the agency report ("AR"), including the source selection documents, the Source Selection Evaluation Board ("SSEB") evaluation notes, the Contracting Officer's Statement of Facts, and all other AR tabs. Document review under this workstream is critical to the development of the protester's comments and to the refinement of our legal arguments. The agency report is expected to contain between 40 and 50 tabs of documents, many of which will be designated as protected or proprietary under the protective order.
Workstream C — ITAR/Export Compliance Overlay. This workstream addresses the analysis of International Traffic in Arms Regulations ("ITAR") and Export Administration Regulations ("EAR") compliance issues that are relevant to the evaluation of proposals under Factor 3(c) (ITAR/Export Compliance subfactor). This workstream also encompasses the analysis of Halcyon's reliance on Meridian Semiconductor GmbH, a German entity located in Dresden, Germany, as its sole-source supplier of gallium arsenide ("GaAs") sensor wafers. The ITAR/EAR compliance overlay intersects with the broader supply chain risk management analysis under Factor 3(b) and is relevant to both Ground 1 (tradeoff analysis) and the overall assessment of evaluation reasonableness.
Workstream D — OCI Investigation and Hearing Preparation. This workstream focuses on the factual development of Ground 3 — the organizational conflict of interest involving Halcyon Analytical Services LLC's prior AoA study — and preparation for a potential GAO hearing. The GAO frequently schedules hearings on OCI protest grounds, and we anticipate that a telephonic hearing may be ordered in this case. This workstream includes witness preparation, the development of cross-examination outlines for adverse witnesses, and the preparation of hearing briefs.
Workstream E — Legal Research. This workstream encompasses the preparation of precedent survey memoranda and other legal research products in support of the substantive workstreams. Principal research topics include GAO and federal court precedent on unequal discussions, best-value tradeoff documentation requirements under FAR 15.308, OCI standards and mitigation requirements, and labor rate realism evaluation under FAR 15.404-1(d).
Workstream F — Client Communications and Administration. This workstream covers status updates to client contacts, billing and fee cap tracking, administrative coordination, and general matter management. Regular status updates will be provided to Donald R. Stokes (VP, Government Contracts) and Marcus J. Whitmore (CEO). Billing-related communications will be directed to Patricia "Trish" Langford (CFO) as needed.
2.3 Anticipated Timeline
The following timeline sets forth the principal milestones anticipated in the protest proceeding. All dates are estimates and are subject to change based on the actual course of the proceeding:
•  September 26, 2023: Protest petition filed at GAO.
•  September 27, 2023 (estimated): GAO issues acknowledgment of protest filing and transmits notice to the Air Force, triggering the CICA automatic stay of contract performance under 31 U.S.C. § 3553(c)(1).
•  Late October 2023 (approximately October 26, 2023): Agency report due, approximately 30 calendar days after the protest filing, subject to any extension requests by the agency or intervenor. The agency report will include the Contracting Officer's Statement of Facts, the SSEB evaluation notes, the SSDD, and all other documents bearing on the protest grounds.
•  Mid-November 2023 (approximately November 9, 2023): Protester's comments on the agency report due within approximately 10 business days of receipt of the agency report.
•  Late December 2023 – Early January 2024 (estimated): If a hearing is ordered by the GAO on Ground 3 (OCI) or any other ground, it is anticipated to take place in late December 2023 or early January 2024. Pre-hearing and post-hearing briefs would bracket the hearing date.
•  Early January 2024 (approximately January 4, 2024): GAO's 100-day statutory decision deadline under 31 U.S.C. § 3554(a)(1), measured from the date of protest filing. The GAO's decision is expected to be issued on or before this date, though the GAO may exercise its authority to extend the decision period in appropriate circumstances.
•  TBD: The GAO may schedule an alternative dispute resolution ("ADR") or outcome prediction conference at any point during the proceeding. If scheduled, such a conference would be conducted by the assigned GAO Senior Attorney, Angela M. Palermino.
3. Cross-Practice Coordination
3.1 Practice Groups Involved
This matter requires the coordinated efforts of attorneys from four of the firm's practice groups. The engagement team draws upon the following practices:
Banking & Finance. Claudia Merritt (Responsible Partner) and Ian Blackwood (Billing Partner) are both members of the firm's Banking & Finance practice group. Although the matter falls outside the core Banking & Finance subject-matter portfolio, Merritt has significant experience in government contracts disputes developed through prior cross-practice collaborations and has represented defense contractor clients in procurement-related disputes, including two prior GAO protests. Blackwood's role as Billing Partner is primarily financial and administrative in nature.
Government Contracts. Lt. Col. (Ret.) Nathan Yardley (Of Counsel) is the firm's Government Contracts practice group subject matter expert. Yardley is the primary substantive authority on FAR Part 15 source selection procedures, GAO protest procedures under 4 C.F.R. Part 21, CICA stay requirements, and the full range of legal issues raised by the four protest grounds. Yardley has handled more than 30 GAO protests over his career, including 11 sustained decisions, and has particular expertise in OCI protest grounds and best-value tradeoff challenges.
Litigation. Megan Zhao (Senior Associate) is drawn from the firm's Litigation practice group and provides hearing advocacy, adversarial brief drafting, and witness preparation expertise. Zhao's litigation background is essential given the likelihood of a GAO hearing on the OCI ground and the adversarial nature of briefing against experienced intervenor's counsel.
Privacy & Data Security. Alan Burke (Lead Associate) and Sara Hendricks (Working Associate) are members of the firm's Privacy & Data Security practice group. Burke and Hendricks bring expertise in ITAR and EAR regulatory frameworks that is directly relevant to the analysis of Factor 3(c) (ITAR/Export Compliance subfactor) and the export control dimensions of Halcyon's foreign subcontractor, Meridian Semiconductor GmbH.
3.2 Rationale for Cross-Practice Structure
The cross-practice staffing structure is necessitated by several features of the matter that require expertise beyond any single practice group:
Government Contracts Expertise. The central substantive questions in this protest — including the reasonableness of the best-value tradeoff analysis, the propriety of discussions, the OCI analysis, and the adequacy of cost/price realism evaluation — are core government contracts law issues. The firm's specialized government contracts expertise resides principally in Lt. Col. (Ret.) Yardley, who is a member of the Government Contracts practice group rather than Banking & Finance. Yardley's involvement is essential to ensure that the firm's legal arguments are grounded in current GAO precedent and reflect the nuances of FAR Part 15 source selection procedures.
ITAR/Export Compliance Issues. The evaluation criteria in Solicitation No. FA8222-23-R-0087 include Factor 3(c), an ITAR/Export Compliance subfactor, under which Whitmore received a rating of "Outstanding" and Halcyon received a rating of "Good." The evaluation of this subfactor is directly relevant to Ground 1 (tradeoff analysis), and the supply chain risk analysis under Factor 3(b) raises additional export control questions relating to Halcyon's reliance on Meridian Semiconductor GmbH, a German entity located at Königsbrücker Straße 142, 01099 Dresden, Germany, as its sole-source supplier of gallium arsenide (GaAs) sensor wafers. The Privacy & Data Security practice group's familiarity with the ITAR (22 C.F.R. Parts 120–130) and EAR (15 C.F.R. Parts 730–774) regulatory frameworks makes Burke and Hendricks well-suited to analyze these issues.
Litigation Skills. The anticipated GAO hearing on Ground 3 (OCI), likely to be conducted telephonically, requires traditional litigation skills including witness preparation, cross-examination, and adversarial briefing. Megan Zhao's litigation experience, including her prior experience with administrative hearings, equips her to manage the hearing preparation workstream. Her skills are particularly important given that the intervenor is represented by Kessler, Pratt & Dunaway LLP, a well-resourced government contracts boutique. The lead partner on Halcyon's team, Theodore "Ted" J. Dunaway, is an experienced GAO practitioner, and his associate, Rachel N. Sorensen, is known for thorough and aggressive intervenor briefing. Agency counsel consists of Captain Lucas M. Hargrove, USAF, JAG, a trial attorney in the Air Force Judge Advocate General's Corps, and Miriam T. Castellano, Senior Attorney in the Office of the General Counsel, Secretary of the Air Force (SAF/GCQ). Zhao's advocacy skills will be critical in confronting this level of opposition.
4. Team Assignments
4.1 Claudia Merritt — Responsible Partner
Practice Group: Banking & Finance
Billing Rate: $695/hour
Role: Responsible Partner; overall engagement supervision, strategic direction, and client relationship management.
Key Responsibilities:
(a) Serve as the primary signatory on all GAO filings, including the protest petition (filed September 26, 2023), protester's comments on the agency report, supplemental comments, hearing briefs, and any other submissions made to the GAO on behalf of Whitmore Aerospace LLC.
(b) Serve as the lead on client communications with Marcus J. Whitmore, Chief Executive Officer, and Donald R. Stokes, Vice President, Government Contracts. All significant strategic communications with the client should be routed through or coordinated with Merritt prior to delivery.
(c) Conduct final review and approval of all pleadings and submissions prior to filing. No document shall be filed at the GAO without Merritt's express approval, unless she has specifically delegated filing authority for a particular submission.
(d) Participate in protective order proceedings as admitted counsel under the GAO protective order. Upon issuance of the protective order, Merritt will be one of the attorneys authorized to access protected and proprietary material produced by the agency and the intervenor.
(e) Attend GAO ADR conferences and key procedural events, including any outcome prediction conference scheduled by Senior Attorney Angela M. Palermino.
(f) Coordinate with the Billing Partner (Blackwood) on fee cap management, including reviewing fee burn rates against the voluntary fee cap and making staffing adjustments as necessary to ensure compliance.
(g) Serve as the engagement team's primary point of contact for firm management on matters relating to this engagement.
4.2 Ian Blackwood — Billing Partner
Practice Group: Banking & Finance
Billing Rate: $695/hour
Role: Billing Partner; financial oversight of engagement.
Key Responsibilities:
(a) Conduct monthly review of time entries and billing summaries for all timekeepers assigned to Matter No. 1019-00003. Review should include verification that all entries are properly coded with the correct matter number and appropriate task codes for each workstream.
(b) Monitor compliance with the voluntary fee cap of $425,000 (attorneys' fees only, exclusive of out-of-pocket costs). Blackwood will maintain a fee cap tracking workbook that is updated at least weekly and will alert Merritt whenever cumulative fees reach 50%, 75%, and 90% of the fee cap threshold.
(c) Approve expense disbursements, including expert consultant fees (Ridgeline Consulting Group LLC), travel expenses, hearing and deposition transcripts, filing and reproduction costs, and courier/overnight delivery charges. All expense disbursements in excess of $1,000 require Blackwood's prior approval.
(d) Serve as liaison with Whitmore's Chief Financial Officer, Patricia "Trish" Langford, on billing matters as needed. Blackwood should coordinate with Merritt prior to any billing-related communications with Langford to ensure alignment with the client relationship.
(e) Maintain limited substantive involvement in the matter. Blackwood is available for strategic consultation on complex procedural questions and will participate in team calls on an as-needed basis, but is not expected to perform substantive legal work on the protest. This limited-involvement arrangement is designed to minimize fee cap consumption by partner-level hours.
4.3 Lt. Col. (Ret.) Nathan Yardley — Of Counsel, Subject Matter Lead
Practice Group: Government Contracts
Billing Rate: $475/hour
Role: Subject matter lead on all government contracts law issues; primary drafter and strategist.
Key Responsibilities:
(a) Serve as the lead drafter of the protest petition (filed September 26, 2023), protester's comments on the agency report, supplemental comments, and hearing briefs (pre-hearing and post-hearing). Yardley is responsible for the substantive legal content of all filings, subject to Merritt's final review and approval.
(b) Serve as the primary analyst of the agency report upon receipt, including the Contracting Officer's Statement of Facts, the SSEB evaluation notes and consensus reports, the Source Selection Decision Document ("SSDD"), the cost/price evaluation records, the OCI analysis and determination, and all other AR tabs. Yardley will direct the associate-level document review (Hendricks) and will personally review all documents bearing on the four protest grounds.
(c) Develop the legal arguments on all four protest grounds, with particular emphasis on Ground 1 (unreasonable tradeoff under FAR 15.308) and Ground 2 (unequal discussions). Yardley will prepare the analytical framework for each ground and will ensure that arguments are grounded in current GAO precedent and consistent with the Comptroller General's recent decisions on analogous issues.
(d) Conduct a detailed assessment of the OCI ground (Ground 3), including analysis of the nature and scope of Halcyon Analytical Services LLC's prior AoA study under Contract No. FA8222-21-C-0018, the relationship between the AoA study deliverables and the solicitation requirements, and the adequacy of the agency's OCI analysis and mitigation determination. Yardley will coordinate with Zhao on the factual development and hearing preparation aspects of this ground.
(e) Supervise associate-level legal research by directing Burke and Hendricks on precedent surveys and research memoranda. Yardley will review all research products before they are incorporated into filings or relied upon for strategic decisions.
(f) Participate in protective order proceedings as admitted counsel under the GAO protective order. Upon issuance, Yardley will be authorized to access protected and proprietary material.
(g) Coordinate with Megan Zhao on hearing preparation and post-hearing briefing, including the development of direct and cross-examination outlines, the identification and preparation of witnesses, and the preparation of hearing briefs.
(h) Serve as the primary liaison with the outside expert consultant, Janet K. Overmeyer of Ridgeline Consulting Group LLC (4501 Fairfax Drive, Suite 200, Arlington, Virginia 22203), on technical evaluation issues, particularly those arising under the Manufacturing Readiness subfactor. Yardley will coordinate with Overmeyer on her review of agency report documents (if she is admitted as a technical advisor under the protective order), potential supplemental declarations, and consultation on technical discriminators between the Whitmore and Halcyon proposals.
(i) Review Agency Report Tabs for proper designation of protected and proprietary material under the GAO Protective Order, and flag any over-designation or under-designation issues for Merritt's attention.
4.4 Megan Zhao — Senior Associate, Hearing Preparation and Brief Drafting
Practice Group: Litigation
Billing Rate: $385/hour
Role: Hearing advocacy, brief drafting, and witness preparation.
Key Responsibilities:
(a) Draft hearing brief(s) and post-hearing brief for Ground 3 (OCI) and any other grounds set for hearing by the GAO. Hearing briefs will be prepared in coordination with Yardley and will be subject to Merritt's final review and approval.
(b) Prepare witness Donald R. Stokes, Vice President, Government Contracts, for GAO hearing testimony. The hearing is anticipated to be conducted telephonically, consistent with the GAO's standard practice. Witness preparation sessions should be scheduled sufficiently in advance of the hearing date to allow for iterative preparation, including at least one full mock examination session.
(c) Develop cross-examination outlines for anticipated adverse witnesses. Based on our current assessment, the adverse witnesses most likely to testify at a hearing on the OCI ground include: (i) Greta M. Holloway, President of Halcyon's Sensor Solutions Division, who is expected to testify regarding the firewalls and mitigation measures implemented to prevent the flow of nonpublic information from Halcyon Analytical Services LLC to the proposal team; and (ii) Colonel Diane W. Prescott, USAF, the Contracting Officer for the AFLCMC Sensors Directorate at Wright-Patterson Air Force Base, who is expected to testify regarding the agency's OCI analysis and mitigation determination.
(d) Support the drafting of the protester's comments on the agency report and supplemental comments, particularly sections addressing the factual development of the OCI ground and any Ground 2 (unequal discussions) arguments that are informed by the agency report documents.
(e) Participate in protective order proceedings as admitted counsel under the GAO protective order. Upon issuance, Zhao will be authorized to access protected and proprietary material.
(f) Coordinate with Yardley on legal argumentation strategy, ensuring that the hearing presentation is fully aligned with the written briefing and that the hearing record supports the arguments advanced in the post-hearing brief.
(g) Support preparation for any ADR conference or outcome prediction conference scheduled by the GAO. If such a conference is scheduled with GAO Senior Attorney Angela M. Palermino, Zhao will assist Merritt and Yardley in preparing the presentation of Whitmore's position and the anticipated evidentiary support.
4.5 Alan Burke — Lead Associate, ITAR/EAR Compliance Overlay
Practice Group: Privacy & Data Security
Billing Rate: $315/hour
Role: Lead on ITAR and EAR compliance analysis relevant to the protest evaluation factors.
Key Responsibilities:
(a) Conduct a comprehensive analysis of Factor 3(c) (ITAR/Export Compliance subfactor), under which Whitmore received an evaluation rating of "Outstanding" and Halcyon received a rating of "Good." Burke will analyze the significance of the rating differential and its impact on the overall Factor 3 evaluation and the tradeoff analysis.
(b) Assess the requirements of CDRL A015 (ITAR Compliance Plan), which was added to the solicitation by Amendment 0002, issued April 28, 2023. Burke will analyze how each offeror's ITAR compliance plan was evaluated and whether the agency's evaluation of the respective compliance plans was reasonable and consistent with the stated evaluation criteria in Section M.
(c) Analyze the export control implications arising from Halcyon's reliance on Meridian Semiconductor GmbH (Königsbrücker Straße 142, 01099 Dresden, Germany) as its sole-source supplier of gallium arsenide (GaAs) sensor wafers. This analysis will address the intersection of export control requirements with the Factor 3(b) Supply Chain Risk Management evaluation, including the adequacy of Halcyon's proposed approach to managing the ITAR/EAR compliance risks associated with the use of a foreign sole-source supplier for a critical component.
(d) Prepare an internal ITAR/Export Compliance Analysis Memorandum summarizing the findings of the above analyses. This memorandum will be circulated to Merritt, Yardley, and Zhao and will serve as the foundation for the ITAR/export compliance arguments in the protester's comments.
(e) Conduct legal research on best-value tradeoff documentation requirements under FAR 15.308, with a focus on GAO precedent addressing the documentation of tradeoffs involving technical subfactors with export control or ITAR compliance dimensions. Burke will prepare a precedent survey memorandum on this topic.
(f) Support the drafting of protester's comments sections addressing the Factor 3 evaluation, particularly the sections relating to Factor 3(c) and Factor 3(b).
(g) Review solicitation amendments, with particular attention to Amendment 0002 (April 28, 2023), and the Section M evaluation criteria for export compliance dimensions. Burke will prepare a summary of the evaluation criteria relevant to the ITAR/EAR compliance overlay for the team's reference.
4.6 Sara Hendricks — Working Associate, Research and Document Review
Practice Group: Privacy & Data Security
Billing Rate: $315/hour
Role: Primary research attorney and document review support.
Key Responsibilities:
(a) Conduct legal research on GAO precedent addressing unequal discussions. Hendricks will prepare a comprehensive precedent survey memorandum identifying and analyzing the key GAO and Court of Federal Claims decisions on the standards for establishing materially unequal discussions, including the distinction between discussions and clarifications, the standard for demonstrating prejudice, and the burden of proof in unequal discussions challenges. This memorandum should be completed by October 5, 2023.
(b) Upon receipt of the agency report, conduct a review and indexing of all agency report documents (anticipated AR Tabs 1 through approximately 47). Hendricks will prepare an AR Index summarizing the contents of each tab, flagging documents of particular relevance to the four protest grounds, and identifying any documents that appear to be missing or incomplete.
(c) Maintain the factual chronology for the matter. Hendricks will update and expand the client intake memorandum chronology as new facts emerge from the agency report, from communications with the client, and from other sources. The chronology will serve as a reference tool for the entire team.
(d) Perform cite-checking and proofreading of all GAO filings prior to submission. All draft filings should be routed to Hendricks for a final cite-check and proofread before being submitted to Merritt for final approval.
(e) Assist with protective order document management, including the marking of protected documents, the tracking of document access, and the maintenance of secure storage protocols in accordance with the Internal Memorandum on Protective Order Handling Procedures (to be issued).
(f) Provide research support to Burke on ITAR/EAR-related legal issues as needed, including research on the regulatory framework governing technical data, defense articles, and defense services under the ITAR and the controlled items and technologies regulated under the EAR.
(g) Perform general research assignments as directed by Yardley and Merritt, including research on OCI standards, labor rate realism evaluation under FAR 15.404-1(d), and any other topics that arise during the course of the protest.
5. External Resources
5.1 Expert Consultant — Ridgeline Consulting Group LLC
Principal: Janet K. Overmeyer
Office: 4501 Fairfax Drive, Suite 200, Arlington, Virginia 22203
Role: Ms. Overmeyer assisted Whitmore Aerospace LLC in preparing its technical and management proposal volumes in response to Solicitation No. FA8222-23-R-0087. She is a former Air Force acquisition professional with extensive experience in manufacturing readiness assessments for electro-optical and infrared countermeasure systems. Ms. Overmeyer has already provided a sworn declaration that was filed with the protest petition on September 26, 2023, opining on the Manufacturing Readiness evaluation methodology employed by the SSEB and the reasonableness of the ratings assigned under the Manufacturing Readiness subfactor.
Anticipated Additional Work: Overmeyer's anticipated additional work for this engagement includes: (i) review of agency report evaluation documents, if she is admitted as a technical advisor under the GAO protective order; (ii) preparation of a potential supplemental declaration, if warranted by the contents of the agency report; and (iii) ongoing consultation with Yardley on technical discriminators between the Whitmore and Halcyon proposals, particularly as they relate to the Manufacturing Readiness and Technical Approach subfactors.
Budget: Ridgeline Consulting Group's fees will be tracked as a protest cost and are not included in the voluntary fee cap of $425,000 (which applies to attorneys' fees only). The estimated cost for Ridgeline's engagement is approximately $8,200, based on the anticipated scope of work. This estimate is subject to revision based on actual hours incurred and the extent of Overmeyer's involvement in agency report review and supplemental declaration preparation.
5.2 Client-Side Contacts
The following client-side personnel are the designated points of contact for purposes of this engagement:
Donald R. Stokes, Vice President, Government Contracts — Mr. Stokes is the primary day-to-day client contact and the principal source of factual information regarding Whitmore's proposal, the procurement process, and the discussions conducted by the Air Force. Mr. Stokes is also a potential hearing witness and will be prepared by Zhao for GAO hearing testimony if a hearing is ordered.
Marcus J. Whitmore, Chief Executive Officer — Mr. Whitmore is the engagement-level decision maker and should be included in all strategic communications regarding the direction of the protest, settlement or alternative dispute resolution opportunities, and any significant developments in the proceeding.
Patricia "Trish" Langford, Chief Financial Officer — Ms. Langford is the designated contact for billing and financial matters. All invoices and billing inquiries should be directed to her attention, coordinated through Blackwood.
6. Billing and Fee Cap Management
The billing and fee cap management arrangements for Matter No. 1019-00003 are as follows:
Voluntary Fee Cap. The engagement is subject to a voluntary fee cap of $425,000, covering attorneys' fees only. The fee cap does not include out-of-pocket costs such as expert consultant fees (Ridgeline Consulting Group LLC), hearing or deposition transcripts, travel expenses, filing and reproduction costs, or courier/overnight delivery charges. The fee cap was agreed upon in connection with the engagement letter executed between the firm and Whitmore Aerospace LLC.
Rate Structure. The engagement utilizes a blended rate structure, with the following hourly billing rates applicable to each timekeeper level:
Fee Cap Tracking. Ian Blackwood will review monthly billing summaries and will maintain a fee cap tracking workbook that monitors cumulative fees against the $425,000 cap on a rolling basis. The tracking workbook will be updated at least weekly and will include a breakdown of hours and fees by timekeeper and by workstream. Blackwood will alert Merritt whenever cumulative fees reach the 50%, 75%, and 90% thresholds of the fee cap.
Estimated Total Hours. Given the complexity of the four-ground protest, the anticipated agency report review, the potential hearing, and the adversarial briefing, total attorney hours for the engagement are estimated at approximately 800 or more hours across the team. Close monitoring is required to ensure that the team remains within the $425,000 fee cap. The allocation of hours across timekeepers will need to be carefully managed, with an emphasis on leveraging the lower-rate associates (Burke and Hendricks at $315/hour) and the Of Counsel (Yardley at $475/hour) for the bulk of substantive work, while limiting partner-level hours (Merritt and Blackwood at $695/hour) to supervision, client communications, and strategic decision-making.
Task Codes. All timekeepers are required to use matter number 1019-00003 and the appropriate task codes for each workstream when recording time entries. The task codes for each workstream are as follows:
Anticipated Out-of-Pocket Expenses. The following categories of out-of-pocket expenses are anticipated for this engagement and are excluded from the fee cap:
•  Expert consultant fees — Ridgeline Consulting Group LLC (Janet K. Overmeyer), estimated at approximately $8,200.
•  Hearing and/or deposition transcripts, if a hearing is ordered by the GAO.
•  Potential travel to Wright-Patterson Air Force Base, Dayton, Ohio, for document inspection, if in-person inspection of source selection documents is required or advantageous.
•  Electronic filing fees and document reproduction costs.
•  Courier and overnight delivery charges for filings and document transmissions.
All expense disbursements in excess of $1,000 require Blackwood's prior approval, as noted in Section 4.2 above.
7. Supervision and Reporting Structure
The supervision and reporting structure for the engagement team is designed to ensure efficient coordination across practice groups while maintaining clear lines of authority and accountability. The structure is as follows:
Claudia Merritt (Responsible Partner) supervises all team members and approves all final work product. Merritt has ultimate authority over strategic decisions, client communications, and the content of all filings. All team members report to Merritt, either directly or through intermediate supervisors as described below.
Lt. Col. (Ret.) Nathan Yardley (Of Counsel, Subject Matter Lead) serves as the day-to-day substantive lead for the engagement. Yardley directs research assignments to Burke and Hendricks, coordinates with Zhao on hearing-related work, and is responsible for ensuring that the substantive legal work is conducted efficiently and is consistent with the overall strategy approved by Merritt. Yardley reports to Merritt on all substantive and strategic matters.
Megan Zhao (Senior Associate) operates semi-independently on the hearing preparation workstream (Workstream D), under the joint supervision of Merritt and Yardley. Zhao coordinates with Yardley on the integration of hearing-related work with the broader briefing strategy and reports to Merritt on witness preparation and hearing logistics.
Alan Burke (Lead Associate) reports to Yardley on substantive government contracts work (including the precedent survey on tradeoff documentation requirements) and reports to Merritt on the ITAR/EAR compliance overlay (Workstream C). Burke operates with a dual reporting structure that reflects his cross-practice role.
Sara Hendricks (Working Associate) reports to Yardley on research assignments and general document review, and reports to Burke on ITAR/EAR-related research support. Hendricks is the most junior member of the team and should direct questions regarding priorities and assignment sequencing to Yardley in the first instance.
Weekly Team Calls. Weekly internal team calls will be scheduled for Tuesdays at 4:00 p.m. Eastern Time, commencing September 28, 2023 (adjusted to Thursday for the initial call due to the Tuesday proximity to the filing date). These calls will be used to coordinate workstreams, review upcoming deadlines, address cross-practice issues, and ensure that all team members are aligned on the current status of the matter. All team members are expected to attend, with the exception of Blackwood, who will attend on an as-needed basis.
Billing Snapshots. Blackwood will receive weekly billing snapshots reflecting cumulative hours and fees by timekeeper, and comprehensive monthly billing summaries reflecting hours, fees, and expenses by workstream and by timekeeper. Monthly summaries will be provided to Blackwood by the first business day of each month.
8. Key Opposing Counsel and Agency Personnel
The following individuals have been identified as key opposing counsel and agency personnel for purposes of this protest:
Intervenor's Counsel (Halcyon Defense Systems Inc.)
Firm: Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102.
Lead Partner: Theodore "Ted" J. Dunaway. Dunaway is a well-known government contracts litigator with extensive GAO protest experience. He is expected to lead Halcyon's defense of the award.
Associate: Rachel N. Sorensen. Sorensen is expected to handle the day-to-day briefing and research on behalf of Halcyon.
Status: Halcyon Defense Systems Inc. filed its notice of intervention on October 2, 2023, through Kessler, Pratt & Dunaway LLP.
Agency Counsel (United States Department of the Air Force)
Trial Attorney: Captain Lucas M. Hargrove, USAF, Judge Advocate General's Corps. Capt. Hargrove is assigned as the trial attorney representing the Air Force in this protest.
Senior Attorney: Miriam T. Castellano, Senior Attorney, Office of the General Counsel, Secretary of the Air Force (SAF/GCQ). Ms. Castellano provides civilian legal support to the Air Force's defense of the procurement.
Key Agency Personnel
Contracting Officer: Colonel Diane W. Prescott, USAF, AFLCMC Sensors Directorate, Wright-Patterson Air Force Base, Ohio 45433. Col. Prescott is the Contracting Officer for Solicitation No. FA8222-23-R-0087 and the signatory on the award decision. She is an anticipated adverse witness at any hearing on the OCI ground.
Contract Specialist: Vincent R. Talmadge. Mr. Talmadge served as the Contract Specialist supporting the procurement and may have relevant knowledge regarding the conduct of discussions and the administration of the OCI review process.
Source Selection Authority: Brigadier General Harlan T. Jeffcoat, USAF. BGen Jeffcoat served as the Source Selection Authority and signed the Source Selection Decision Document. His tradeoff rationale is the primary target of Ground 1 of the protest.
SSEB Chair: Dr. Yolanda R. Fenn. Dr. Fenn chaired the Source Selection Evaluation Board and oversaw the technical and management evaluation panels. Her evaluation methodology and consensus determinations are relevant to multiple protest grounds.
GAO Attorney.  
Assigned Attorney: Angela M. Palermino, Senior Attorney, Procurement Law Division, U.S. Government Accountability Office. Ms. Palermino is the GAO attorney assigned to B-422187 and B-422187.2 and will manage all procedural aspects of the protest, including scheduling, protective order administration, and any ADR or outcome prediction conference.
9. Document Retention and Security
All documents related to Matter No. 1019-00003 shall be maintained in the firm's secure document management system in accordance with the firm's standard document retention policies and the following matter-specific requirements:
Protected and Proprietary Material. Protected and proprietary material received under the GAO Protective Order shall be handled pursuant to a separate Internal Memorandum on Protective Order Handling Procedures, which will be prepared and circulated to the team promptly after the protective order is issued. The Internal Memorandum will address the specific requirements for storage, access, marking, and disposition of protected material, consistent with the terms of the protective order.
Access Restrictions. Only counsel admitted under the GAO Protective Order may access protected and proprietary material produced in connection with the agency report or by the intervenor. As of the date of this memorandum, the attorneys designated for admission under the protective order are:
•  Claudia Merritt (Responsible Partner)
•  Lt. Col. (Ret.) Nathan Yardley (Of Counsel)
•  Megan Zhao (Senior Associate)
In addition, the outside expert consultant, Janet K. Overmeyer of Ridgeline Consulting Group LLC, may be admitted as a technical advisor under the protective order, if the team determines that her access to protected material is necessary for the development of technical arguments and supplemental declarations.
Personnel Not Admitted Under Protective Order. The following team members are not admitted under the protective order and must not access protected or proprietary documents under any circumstances:
•  Alan Burke (Lead Associate)
•  Sara Hendricks (Working Associate)
•  Ian Blackwood (Billing Partner)
The exclusion of Burke and Hendricks from protective order access is a practical limitation that must be managed carefully. Yardley, Zhao, and Merritt will need to prepare redacted summaries or non-protected analyses for Burke and Hendricks where their input is needed on issues implicating protected material.
Client Personnel. Client personnel, including Donald R. Stokes, Marcus J. Whitmore, and Patricia "Trish" Langford, may not access protected or proprietary material received under the GAO Protective Order. Client access restrictions are a standard feature of GAO protective orders and are required to prevent the competitive use of an opponent's proprietary proposal information.
10. Initial Action Items and Deadlines
The following table sets forth the initial action items for the engagement team and the associated deadlines. This list will be supplemented and updated as the proceeding progresses.
Additional action items will be identified and assigned at the initial team call and at weekly team calls thereafter. All team members should maintain individual task lists and should promptly communicate any deadline concerns or resource constraints to Yardley or Merritt.
11. Closing
This memorandum documents the engagement team composition, individual role assignments, workstream allocations, and administrative arrangements for Matter No. 1019-00003 as of the date of filing. The memorandum will be updated as staffing needs evolve during the course of the protest. Anticipated circumstances that may trigger updates include the receipt of the agency report, the scheduling of a hearing, changes in the scope of the protest (such as the filing of a supplemental protest), and resource constraints arising from fee cap management.
Any requests for additional resources — including but not limited to contract attorney support for agency report document review, the engagement of additional associates for research-intensive periods, or the retention of additional expert consultants — must be approved by both Merritt and Blackwood in light of the voluntary fee cap constraints. Requests for additional resources should be accompanied by a brief memorandum identifying the need, the estimated hours and cost, and the impact on the fee cap.
Copies of this memorandum have been distributed to all team members:
•  Lt. Col. (Ret.) Nathan Yardley, Of Counsel
•  Megan Zhao, Senior Associate
•  Alan Burke, Lead Associate
•  Sara Hendricks, Working Associate
Please direct any questions regarding team assignments, workstream allocation, or the matters addressed in this memorandum to Claudia Merritt at the firm's Washington, D.C. office (1750 K Street NW, Suite 1100, Washington, D.C. 20006).
Claudia Merritt Responsible Partner Banking & Finance Practice Group Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006
Date: September 26, 2023
Distribution: Ian Blackwood, Nathan Yardley, Megan Zhao, Alan Burke, Sara Hendricks Matter No. 1019-00003 — B-422187; B-422187.2 PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED / WORK PRODUCT
Timekeeper Level | Rate
Partners (Merritt, Blackwood) | $695/hour
Of Counsel (Yardley) | $475/hour
Senior Associates (Zhao) | $385/hour
Associates (Burke, Hendricks) | $315/hour
Workstream | Task Code
Workstream A — Pleadings and Briefing | GC-PLEAD
Workstream B — Protective Order and Document Review | GC-DOCREV
Workstream C — ITAR/Export Compliance Overlay | GC-ITAR
Workstream D — OCI Investigation and Hearing Preparation | GC-HEARING
Workstream E — Legal Research | GC-RESEARCH
Workstream F — Client Communications and Administration | GC-ADMIN
Action Item | Responsible | Deadline
Confirm GAO acknowledgment of protest filing (B-422187; B-422187.2) | Hendricks | September 27, 2023
Monitor for CICA stay notification to the Air Force under 31 U.S.C. § 3553(c)(1) | Yardley | September 27, 2023
Prepare protective order application for filing at GAO | Merritt, Yardley | October 12, 2023
Monitor for intervenor notice from Halcyon Defense Systems Inc. / Kessler, Pratt & Dunaway LLP | Zhao | Early October 2023
Begin precedent survey — unequal discussions (Ground 2) | Hendricks | October 5, 2023
Begin precedent survey — tradeoff documentation requirements under FAR 15.308 (Ground 1) | Burke | October 8, 2023
Coordinate with Ridgeline Consulting Group (Overmeyer) on potential supplemental declaration and protective order admission | Yardley | Ongoing
Establish weekly team call schedule (Tuesdays, 4:00 p.m. ET) | Merritt | September 28, 2023
Set up fee cap tracking workbook | Blackwood | October 1, 2023
Send initial client status update to Donald R. Stokes (VP, Gov't Contracts) and Marcus J. Whitmore (CEO) | Merritt | October 1, 2023

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