1019-00003 · Whitmore Aerospace LLC · Agency Report Phase

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BEFORE THE COMPTROLLER GENERAL OF THE UNITED STATES UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE

PROTESTER'S REQUEST FOR PRODUCTION OF UNREDACTED AGENCY REPORT TABS 22, 23, AND 28

Filing Date: November 6, 2023

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I. INTRODUCTION AND SUMMARY OF REQUEST

Calderwood & Harkness LLP, on behalf of protester Whitmore Aerospace LLC ("Whitmore" or "WAL"), a Virginia limited liability company headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171, respectfully requests that the Government Accountability Office ("GAO") order the Department of the Air Force (the "Agency") to produce complete, unredacted versions of Agency Report ("AR") Tabs 22, 23, and 28 under the Protective Order issued October 12, 2023 (the "Protective Order"), which governs access to proprietary and source selection sensitive information in this matter.

The Agency filed its Agency Report on October 30, 2023. Protective-order versions of the Agency Report documents were distributed to protester's outside counsel of record on October 31, 2023. Upon careful review, protester's counsel has determined that AR Tabs 22, 23, and 28 — each of which pertains to the Source Selection Evaluation Board's ("SSEB") evaluation of the awardee Halcyon Defense Systems Inc.'s ("Halcyon" or "HDS") proposal under the Supply Chain Risk Management subfactor (Factor 3(b)) of the Management Approach evaluation factor — were produced in a heavily redacted form that renders them largely unusable for purposes of preparing Whitmore's protest comments.

Specifically, the redacted material obscures critical information regarding the SSEB's documented concerns about Halcyon's supply chain risk posture, including — as can be discerned from the remaining, unredacted fragments — the SSEB's analysis of Halcyon's reliance on a sole-source foreign subcontractor, Meridian Semiconductor GmbH, a German entity based in Dresden, Germany, for the production of critical gallium arsenide ("GaAs") sensor wafers used in Halcyon's proposed infrared countermeasure ("IRCM") pod design. These GaAs sensor wafers are a mission-critical component of the IRCM pod assemblies that are the subject of the solicitation at issue.

The redacted material contained in Tabs 22, 23, and 28 is directly relevant to Whitmore's Ground 2 of protest, which alleges that the Agency conducted materially unequal discussions in violation of the FAR and governing procurement law by raising concerns with Whitmore but failing to raise documented concerns of comparable or greater significance with the awardee. The redacted material also bears directly upon Whitmore's Ground 1, which challenges the reasonableness of the Source Selection Authority's best-value tradeoff analysis under FAR 15.308, because the SSEB's internal assessment of Halcyon's supply chain risks should have been — but apparently was not — meaningfully weighed in the tradeoff determination that led to award at a price premium of $17,400,000 (4.82%) over Whitmore's lower-priced, technically competitive proposal.

The existing Protective Order provides more than adequate safeguards to protect the legitimate competitive and proprietary interests of the awardee, Halcyon, and the source selection sensitive interests of the Agency. All admitted counsel — Claudia Merritt, Lt. Col. (Ret.) Nathan Yardley, and Megan Zhao of Calderwood & Harkness LLP — and the designated technical advisor, Janet K. Overmeyer, Principal of Ridgeline Consulting Group LLC, have executed the requisite acknowledgment forms and are bound by the Protective Order's comprehensive non-disclosure, restricted-access, and destruction/return provisions. Accordingly, there is no basis for the Agency to withhold this material from counsel admitted under the Protective Order, and Whitmore respectfully requests that GAO order prompt production.

II. PROCEDURAL BACKGROUND

A. Solicitation and Award

On March 14, 2023, the United States Department of the Air Force, through the Air Force Life Cycle Management Center (AFLCMC), Sensors Directorate, Wright-Patterson Air Force Base, Ohio 45433, issued Solicitation No. FA8222-23-R-0087 (the "Solicitation") for an indefinite-delivery/indefinite-quantity ("IDIQ") contract for the design, development, production, and sustainment of advanced infrared countermeasure ("IRCM") pod assemblies. The Solicitation contemplated a single-award IDIQ contract with a total ceiling value of $387,500,000 over a five-year ordering period, consisting of one base year and four one-year option periods. The IRCM pod assemblies to be procured under the contract are intended for integration onto multiple fixed-wing and rotary-wing platforms in the Air Force inventory, and the solicitation specified stringent performance, quality, and supply chain requirements reflecting the mission-critical nature of the deliverables.

The Solicitation was amended three times during the pre-proposal period. Amendment 0001 was issued on April 7, 2023, and addressed minor administrative corrections and clarifications to Section L proposal instructions. Amendment 0002 was issued on April 28, 2023, and made substantive revisions to the procurement: it added Contract Data Requirements List ("CDRL") item A015, which required offerors to submit a detailed International Traffic in Arms Regulations ("ITAR") compliance plan as part of their Management Approach volume, and it revised the Section M evaluation criteria to, among other things, clarify the relationship between the Supply Chain Risk Management subfactor (Factor 3(b)) and the overall Management Approach factor (Factor 3). Amendment 0003 was issued on May 12, 2023, and extended the proposal due date and made final revisions to certain technical requirements in Section C.

Proposals were due on June 2, 2023. The Agency received proposals from multiple offerors and, following initial evaluation, established the competitive range on August 3, 2023. Three offerors were included in the competitive range: Whitmore Aerospace LLC, Halcyon Defense Systems Inc., and Marlowe Asset Management Electro-Optics Corp. ("Marlowe Asset Management"). Marlowe Asset Management was subsequently eliminated from the competitive range prior to the conclusion of discussions.

The Agency conducted discussions with the remaining competitive range offerors during the period of August 14 through August 25, 2023. As discussed in greater detail below, during this discussion period the Agency issued two Evaluation Notices ("ENs") to Whitmore — designated EN-WAL-001 and EN-WAL-002 — identifying alleged weaknesses in Whitmore's proposal under the Manufacturing Readiness subfactor (Factor 1(b)) of the Technical Approach factor (Factor 1). The record reflects that no Evaluation Notices were issued to Halcyon regarding its Supply Chain Risk Management subfactor (Factor 3(b)), notwithstanding the SSEB's documented identification of concerns in that area.

Following discussions, final proposal revisions ("FPRs") were due on September 1, 2023. The Source Selection Authority, Brigadier General Harlan T. Jeffcoat, USAF, made the award decision, and the Air Force awarded Contract No. FA8222-23-D-0193 to Halcyon Defense Systems Inc. on September 15, 2023. Halcyon's proposal received an evaluated total price of $361,200,000. Whitmore's proposal received an evaluated total price of $343,800,000 — a price differential of $17,400,000, or approximately 4.82%, in Whitmore's favor. Despite Whitmore's lower price, the SSA determined that Halcyon's proposal represented the best value to the Government, relying principally on Halcyon's "Outstanding" rating under the Manufacturing Readiness subfactor (Factor 1(b)), as documented in the Source Selection Decision Document ("SSDD").

B. Protest Filing and Current Status

On September 22, 2023, the Agency conducted an enhanced written debriefing of Whitmore's proposal in accordance with the requirements of 10 U.S.C. § 3304. Following receipt and analysis of the debriefing materials, Whitmore timely filed this protest with GAO on September 26, 2023, within the ten-day post-debriefing filing deadline established by 4 C.F.R. § 21.2(a)(2).

GAO issued its notice of protest on September 27, 2023. Upon issuance of that notice, the Competition in Contracting Act ("CICA") automatic stay of contract performance took effect under 31 U.S.C. § 3553(c)(1), precluding the Agency from proceeding with performance under the awarded contract pending GAO's resolution of the protest.

On October 2, 2023, Halcyon Defense Systems Inc. filed a notice of intervention in this matter through its counsel of record, Kessler, Pratt & Dunaway LLP, located at 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102. The lead counsel for the intervenor is Theodore J. Dunaway, partner, and Rachel N. Sorensen, associate.

On October 12, 2023, GAO issued the Protective Order upon application by Calderwood & Harkness LLP on behalf of the protester. The Protective Order governs the handling, use, and disclosure of proprietary, source selection sensitive, and competition-sensitive information produced in connection with this protest. Protester's counsel — Claudia Merritt (responsible partner), Lt. Col. (Ret.) Nathan Yardley (of counsel), and Megan Zhao (associate) — and the designated technical advisor, Janet K. Overmeyer, Principal of Ridgeline Consulting Group LLC, were admitted under the Protective Order and executed the required acknowledgment forms.

The Agency requested a twenty-day extension to the filing deadline for the Agency Report. On October 18, 2023, GAO granted a partial extension, providing the Agency ten additional days of the requested twenty-day extension. The Agency filed its Agency Report on October 30, 2023, and protective-order versions were distributed to protester's outside counsel on October 31, 2023.

Upon review of the Agency Report, protester's counsel identified the heavy redactions at issue in AR Tabs 22, 23, and 28, which form the basis of this request. Protester's counsel conferred with Agency counsel regarding the redactions prior to filing this request but was unable to resolve the matter informally.

C. Protest Grounds at Issue

Whitmore's protest raises two grounds that are relevant to the present production request:

Ground 1 — Unreasonable Best-Value Tradeoff Analysis. Whitmore alleges that the Source Selection Authority's best-value tradeoff analysis was unreasonable and failed to comply with FAR 15.308. Specifically, the SSDD prepared by Brigadier General Harlan T. Jeffcoat fails to provide any substantive rationale explaining why Halcyon's "Outstanding" rating under Factor 1(b) (Manufacturing Readiness) justified paying $17,400,000 (4.82%) more than Whitmore's proposal. The SSDD contains only conclusory statements that Halcyon's manufacturing readiness approach was "superior" without articulating the specific benefits that warranted the substantial price premium. A meaningful tradeoff analysis necessarily requires consideration of all evaluation factors, including the relative risks associated with each offeror's proposal — including supply chain risks documented in the SSEB evaluation record. The redacted material at issue in this request bears directly on whether the SSA meaningfully considered the supply chain risks associated with Halcyon's proposal, or whether the SSA's tradeoff analysis was unreasonably narrow in scope.

Ground 2 — Unequal Discussions. Whitmore alleges that the Agency conducted materially unequal discussions during the August 14–25, 2023, discussion period in violation of FAR 15.306(d). The Agency issued two Evaluation Notices to Whitmore — EN-WAL-001 and EN-WAL-002 — identifying alleged weaknesses in Whitmore's Manufacturing Readiness subfactor (Factor 1(b)). However, the Agency failed to issue any Evaluation Notices to Halcyon regarding its Supply Chain Risk Management subfactor (Factor 3(b)), which received only an "Acceptable" rating — the lowest passing rating — despite internal SSEB evaluation notes identifying a "significant concern" about Halcyon's reliance on Meridian Semiconductor GmbH as a sole-source foreign subcontractor for critical GaAs sensor wafers. The standard for meaningful discussions requires that the Agency address all weaknesses, significant weaknesses, and deficiencies identified in an offeror's proposal, and the failure to raise a documented "significant concern" with Halcyon while simultaneously challenging Whitmore on a different subfactor constitutes the kind of materially unequal treatment that GAO has consistently sustained as a basis for protest. The redacted material in Tabs 22, 23, and 28 is essential to proving this ground because it is expected to contain the SSEB's full narrative documentation of the supply chain concerns that were identified but never communicated to Halcyon.

III. DESCRIPTION OF REQUESTED DOCUMENTS

Whitmore requests unredacted production of three specific tabs from the Agency Report, each of which relates to the SSEB's evaluation of Halcyon's proposal under Factor 3(b), Supply Chain Risk Management, a subfactor of the Management Approach evaluation factor (Factor 3). Each tab is described in detail below.

A. AR Tab 22 — SSEB Evaluation Notes, Factor 3(b) Supply Chain Risk Management (Halcyon)

AR Tab 22 is titled as the SSEB's evaluation notes for Halcyon's proposal under Factor 3(b), Supply Chain Risk Management. Based on the unredacted portions visible in the protective-order version produced to counsel, it is apparent that this tab documents the SSEB's collective evaluation of Halcyon's approach to managing supply chain risks associated with its proposed IRCM pod design and production.

The unredacted portions of Tab 22 indicate that the SSEB assigned Halcyon a rating of "Acceptable" under the Supply Chain Risk Management subfactor. Fragments of visible text confirm that the SSEB evaluated Halcyon's supply chain approach and identified areas of concern. The unredacted text includes references to "sole-source" supply arrangements and "foreign subcontractor" concerns, providing partial confirmation that the SSEB examined the risks associated with Halcyon's reliance on a single, non-domestic supplier for a critical component.

However, significant portions of Tab 22 — estimated by counsel at approximately 60 to 70 percent of the substantive text — have been redacted by the Agency. The redactions obscure the identity of the specific subcontractor at issue, the specific components or materials subject to sole-source risk, the full scope of the SSEB's documented concerns, and critically, the characterization of the severity of those concerns (i.e., whether they were classified as a "weakness," "significant weakness," "significant concern," "risk," or some other designation under the evaluation methodology employed by the SSEB). The redactions also appear to cover any narrative discussion of mitigation measures proposed by Halcyon and the SSEB's assessment of the adequacy of those measures.

Tab 22 is directly relevant to Ground 2 of Whitmore's protest because it is expected to contain the SSEB's identification and full documentation of the "significant concern" regarding Halcyon's reliance on Meridian Semiconductor GmbH for GaAs sensor wafers — a concern that, based on the available unredacted portions of the record, the Agency failed to raise with Halcyon during the August 14–25, 2023, discussion period by means of an Evaluation Notice or otherwise. Without access to the SSEB's complete evaluation narrative in this tab, protester's counsel cannot adequately characterize the nature and severity of the concern identified by the SSEB, nor can counsel meaningfully compare it to the concerns raised with Whitmore through EN-WAL-001 and EN-WAL-002 — a comparison that is central to the unequal discussions analysis.

B. AR Tab 23 — SSEB Consensus Evaluation Briefing Slides, Factor 3 (Management Approach)

AR Tab 23 contains the SSEB's consensus evaluation briefing slides for Factor 3 (Management Approach), as presented to the Source Selection Advisory Council ("SSAC") and/or the Source Selection Authority ("SSA") during the source selection process. These slides constitute a summary-level presentation of the SSEB's findings and recommendations under all subfactors of the Management Approach factor, including the Supply Chain Risk Management subfactor (Factor 3(b)).

Review of the protective-order version of Tab 23 reveals that the redactions in this tab overlap substantially with the material redacted in Tabs 22 and 28. The redacted slides appear to cover the SSEB's summary assessment of Supply Chain Risk Management for all offerors in the competitive range, including its comparative presentation of the strengths, weaknesses, risks, and significant concerns identified in each offeror's proposal under Factor 3(b). Because the briefing slides are a summary presentation format, Tab 23 appears to present a higher-level distillation of findings that are documented in more granular narrative detail in Tabs 22 and 28. Nonetheless, the slides may contain summary characterizations, comparative matrices, or other synthesis material that is not available elsewhere in the record and that is relevant to both Grounds 1 and 2.

Whitmore requests production of Tab 23 in unredacted form to ensure that the complete SSEB evaluation record for Factor 3 is available to protester's counsel for analysis and for the preparation of protest comments.

C. AR Tab 28 — SSEB Individual Evaluator Worksheets, Factor 3(b) (Halcyon)

AR Tab 28 contains the individual SSEB evaluator worksheets for Halcyon's proposal under Factor 3(b), Supply Chain Risk Management. These worksheets document the individual assessments of each SSEB panel member prior to the consensus evaluation documented in Tab 22. The individual evaluator worksheets are particularly probative because they may reflect the independent judgments of individual evaluators — including areas of concern that may have been raised, debated, and either adopted or not adopted by the consensus panel.

The redacted portions of Tab 28 are expected to contain individual evaluators' narrative assessments of the supply chain concentration risk associated with Halcyon's reliance on Meridian Semiconductor GmbH as the sole source for GaAs sensor wafers. These individual assessments may include notations characterizing this supply chain dependency as a "weakness," "significant weakness," "significant concern," "risk," or other designation, and may include individual evaluators' recommended ratings or narrative comments that informed the consensus evaluation. In particular, the individual evaluator notes of SSEB Chair Dr. Yolanda R. Fenn, if included in this tab, would be particularly probative of whether the supply chain risk was formally identified and documented during the evaluation process and how it was characterized by the SSEB leadership. Dr. Fenn's individual assessment may also shed light on whether the SSEB considered recommending an Evaluation Notice to Halcyon on this issue and, if so, why such a notice was not issued.

Tab 28 is critical to establishing that the Agency was aware of the supply chain risk associated with Halcyon's sole-source foreign subcontractor reliance prior to and during the August 14–25, 2023, discussion period, but affirmatively chose not to raise this documented concern with Halcyon — while simultaneously issuing two Evaluation Notices to Whitmore on a different subfactor (Manufacturing Readiness). This contemporaneous documentary evidence of the SSEB's pre-discussion awareness of the supply chain concern is essential to the merits of Ground 2 and cannot be reconstructed from other portions of the Agency Report.

IV. LEGAL STANDARD FOR DOCUMENT PRODUCTION IN GAO BID PROTESTS

The legal standard governing document production in GAO bid protests is well established and strongly favors the production of a complete, unredacted evaluation record to counsel admitted under a protective order.

Under 4 C.F.R. § 21.3(d), the contracting agency is required to produce, as part of the Agency Report, "all documents relevant to the protest," including "the contracting officer's statement of relevant facts," the solicitation, the protester's proposal, the awardee's proposal, evaluation records, source selection materials, and all internal memoranda, correspondence, and other documents bearing on the agency's award decision. The regulation reflects the GAO's longstanding recognition that the integrity of the protest process depends on the availability of a complete and accurate record for review by the protester's counsel and by GAO's adjudicatory attorneys.

The GAO has consistently held that the agency's obligation to produce a complete record is to be broadly construed. Redactions to Agency Report documents are inappropriate where the redacted material is relevant to one or more properly raised protest grounds and where the information can be adequately protected under a GAO protective order. The protective order mechanism exists precisely to permit counsel to access competitively sensitive and source selection sensitive material in a controlled manner that safeguards the legitimate interests of all parties while ensuring the fairness and completeness of the protest proceeding.

GAO precedent is clear that where a protester demonstrates that redacted material is relevant to a properly raised protest ground, GAO will order production of the unredacted material under the protective order. The standard is one of relevance, not indispensability: the protester need not demonstrate that the redacted material is the only evidence available on a given point, but rather that it is relevant to the protest grounds and that its withholding impairs the protester's ability to present its case. See, e.g., Apptis, Inc., B-299457, 2007 CPD ¶ 49 (ordering production of evaluation materials relevant to protest grounds); Pemco World Air Servs., Inc., B-284219.3, 2000 CPD ¶ 70 (requiring disclosure of source selection materials under protective order); Ashbury Partners LLC, B-409651, 2014 CPD ¶ 224 (emphasizing the importance of a complete record in source selection protests). As GAO has noted, "[t]he purpose of an agency report is to provide GAO and the parties with a complete statement of the relevant facts and a memorandum of law, so that the issues can be resolved on the basis of a full and complete administrative record."

The Protective Order issued October 12, 2023, in this matter provides robust and adequate safeguards for the handling of source selection sensitive and proprietary information. The order restricts access to protected material to admitted counsel and the designated technical advisor, all of whom have executed acknowledgment forms committing to compliance with the order's terms. Specifically, the following individuals have been admitted under the Protective Order and have executed the required acknowledgment forms:

• Claudia Merritt, Partner, Calderwood & Harkness LLP — Responsible Partner and lead protest counsel for Whitmore;

• Lt. Col. (Ret.) Nathan Yardley, Of Counsel, Calderwood & Harkness LLP — Senior counsel with extensive experience in defense procurement matters;

• Megan Zhao, Associate, Calderwood & Harkness LLP — Associate counsel assisting in the preparation of protest comments and legal analysis; and

• Janet K. Overmeyer, Principal, Ridgeline Consulting Group LLC — Designated technical advisor with expertise in IRCM systems and defense supply chain management, retained to assist counsel in understanding and analyzing the technical aspects of the evaluation record.

Each of these individuals is bound by the Protective Order's comprehensive provisions regarding non-disclosure, restricted access, secure storage, and ultimate destruction or return of all protected materials upon conclusion of the protest. None of these individuals is an employee, officer, director, or agent of Whitmore Aerospace LLC, and the Protective Order expressly prohibits disclosure of protected material to any Whitmore personnel. The safeguards in place are consistent with, and in fact exceed, the protections that GAO routinely deems sufficient to justify production of source selection sensitive materials in bid protest proceedings.

V. ARGUMENT: THE REQUESTED TABS ARE DIRECTLY RELEVANT AND NECESSARY

A. Relevance to Ground 2 (Unequal Discussions)

Whitmore's Ground 2 alleges that the Agency conducted materially unequal discussions in violation of FAR 15.306(d) and governing case law. The gravamen of this protest ground is straightforward: during the August 14–25, 2023, discussion period, the Agency issued two Evaluation Notices to Whitmore — EN-WAL-001 and EN-WAL-002 — identifying alleged weaknesses in Whitmore's proposal under the Manufacturing Readiness subfactor (Factor 1(b)). These Evaluation Notices required Whitmore to expend substantial time and resources addressing the Agency's concerns and revising its proposal. At the same time, the Agency failed to issue any Evaluation Notices, or otherwise raise during discussions, its documented concerns about Halcyon's Supply Chain Risk Management subfactor (Factor 3(b)), despite internal SSEB evaluation notes identifying a "significant concern" regarding Halcyon's reliance on Meridian Semiconductor GmbH as a sole-source foreign subcontractor for critical GaAs sensor wafers.

The standard for meaningful discussions under FAR 15.306(d) requires that the agency, at a minimum, discuss with each offeror "adverse past performance information to which the offeror has not had an opportunity to respond," "deficiencies, significant weaknesses, and adverse past performance information," and other concerns that could materially affect the evaluation of the offeror's proposal. While agencies enjoy discretion in the conduct of discussions, that discretion is not unlimited: discussions must be "meaningful," they must not mislead offerors, and they must be conducted on a reasonably equal basis among all competitive range offerors. See FAR 15.306(d)(3); see also Ashford & Co., B-408134.3, 2013 CPD ¶ 169; Ashbury Partners LLC, B-409651, 2014 CPD ¶ 224; Global Eng'g & Constr. Joint Venture, B-412497.2, 2016 CPD ¶ 136.

The unredacted portions of the Agency Report and the Contracting Officer's Statement of Facts ("COSF"), filed by Contracting Officer Colonel Diane W. Prescott and Contract Specialist Vincent R. Talmadge, confirm that the SSEB did, in fact, identify concerns regarding Halcyon's supply chain approach under Factor 3(b). The COSF references "areas of risk" identified by the SSEB but provides no detail regarding the specific nature, scope, or severity of those concerns. The unredacted fragments of Tabs 22 and 28 likewise confirm the existence of documented concerns but redact the substantive detail.

The specific nature and severity of those concerns — which bear directly on whether the Agency was obligated to raise them during discussions as weaknesses or significant weaknesses — are contained in the redacted portions of Tabs 22, 23, and 28. Without access to the full SSEB evaluation narrative, protester's counsel cannot adequately perform the central inquiry required under the unequal discussions standard: a comparison of the significance of the concerns raised with Whitmore (through EN-WAL-001 and EN-WAL-002) against the significance of the concerns known to the SSEB but not raised with Halcyon. If the SSEB's documented concerns about Halcyon's sole-source foreign subcontractor reliance were of equal or greater severity than the concerns raised with Whitmore, then the Agency's failure to issue an Evaluation Notice to Halcyon on this topic would constitute precisely the kind of materially unequal treatment that GAO has consistently held to be prejudicial and sustain-worthy in bid protest jurisprudence.

Protester's counsel cannot make this comparison — and GAO cannot adjudicate this protest ground on a complete record — if 60 to 70 percent of the SSEB's substantive evaluation narrative for Halcyon's Supply Chain Risk Management subfactor remains concealed behind redactions.

B. Relevance to Ground 1 (Unreasonable Best-Value Tradeoff)

The redacted material in Tabs 22, 23, and 28 is also directly relevant to Whitmore's Ground 1, which challenges the reasonableness of the SSA's best-value tradeoff analysis.

Under FAR 15.308, the source selection authority is required to document the rationale for the source selection decision, including the basis for any tradeoffs made among cost or price and non-cost evaluation factors. Where a best-value determination results in award to a higher-priced offeror, the SSA must articulate a rational basis for concluding that the technical superiority of the higher-priced proposal is worth the associated price premium. See Westvale Partners LLC, B-411465, 2015 CPD ¶ 228; Aldermere Industries, B-413120.3, 2017 CPD ¶ 70.

The SSEB's internal assessment of Halcyon's Supply Chain Risk Management bears directly on the reasonableness of the SSA's overall tradeoff determination. Halcyon received a rating of "Acceptable" on Factor 3(b), Supply Chain Risk Management — the lowest passing rating under the evaluation methodology — while Whitmore received a rating of "Good" on the same subfactor. Thus, with respect to at least one evaluation subfactor, Whitmore's proposal was demonstrably superior to Halcyon's. A reasonable tradeoff analysis necessarily requires the SSA to weigh all evaluation factors and to consider the relative risks associated with each offeror's proposal, including the supply chain risks documented in the SSEB evaluation record.

The redacted material in Tabs 22, 23, and 28 may reveal that the SSEB's concerns regarding Halcyon's supply chain risk posture were more significant than the "Acceptable" adjectival rating suggests. In particular, the individual evaluator worksheets in Tab 28 may show that one or more evaluators initially recommended a lower rating or identified the supply chain concentration risk as a "weakness" or "significant weakness" that was subsequently mitigated to an "Acceptable" rating at the consensus level. Such evidence would further undermine the adequacy of the SSA's documented rationale, which appears to have given little or no weight to the comparative supply chain risk profiles of the competing proposals when determining that Halcyon's proposal warranted a $17,400,000 price premium over Whitmore's proposal.

Without access to the complete SSEB evaluation narrative, Whitmore cannot fully develop its argument that the SSA's tradeoff analysis was unreasonably narrow and failed to account for documented supply chain risks that, if properly weighed, should have counseled against award to the higher-priced offeror.

C. The Protective Order Provides Adequate Safeguards

The Protective Order issued by GAO on October 12, 2023, provides comprehensive safeguards that are more than adequate to protect the legitimate proprietary, competitive, and source selection sensitive interests of the awardee, Halcyon Defense Systems Inc., and of the Agency.

All counsel admitted under the Protective Order have executed acknowledgment forms and are bound by the order's terms. The Protective Order expressly prohibits disclosure of protected material to any Whitmore Aerospace LLC personnel, including but not limited to:

• Marcus J. Whitmore, Chief Executive Officer;

• Donald R. Stokes, Vice President, Government Contracts;

• Patricia Langford, Chief Financial Officer; and

• All other employees, officers, directors, agents, and representatives of Whitmore Aerospace LLC.

Protected material is required to be stored in accordance with the Protective Order's security provisions, used solely for the purpose of this protest proceeding, and ultimately returned to the producing party or destroyed upon the conclusion of the protest, with a certification of compliance filed with GAO. The Protective Order further requires that any filings containing protected material be submitted in redacted and unredacted versions, with the unredacted versions provided only to admitted counsel and GAO.

The intervenor Halcyon's competitive interests are therefore adequately protected. Halcyon's proprietary technical data, pricing information, and proposal content will be viewed only by admitted outside counsel and the designated technical advisor, none of whom is an employee, officer, or agent of Whitmore. The admitted technical advisor, Ms. Overmeyer, is an independent consultant retained specifically for this engagement and has no ongoing commercial relationship with Whitmore outside of this protest matter. These protections are fully consistent with the safeguards that GAO routinely relies upon when ordering production of competitively sensitive materials in bid protests, and they ensure that disclosure to admitted counsel will not result in any competitive harm to the awardee.

D. The Agency Has Not Articulated a Sufficient Basis for the Redactions

The Agency's redactions to AR Tabs 22, 23, and 28 are not accompanied by a privilege log, a redaction index, or any specific justification for each individual redaction, as is required under GAO practice. The Agency has provided no document-by-document or redaction-by-redaction explanation identifying the specific basis on which each passage has been withheld. Instead, the Agency has applied broad, undifferentiated redactions across these three tabs without providing the protester or GAO with any meaningful basis to evaluate the propriety of the withholdings.

To the extent the Agency would assert that the redacted material is "source selection sensitive" or "proprietary," such boilerplate assertions are insufficient to justify withholding where, as here, a Protective Order is already in place and governs access to precisely such material. The entire purpose of the Protective Order mechanism is to permit the disclosure of source selection sensitive and proprietary information to qualified counsel under controlled conditions. A blanket assertion that information is "source selection sensitive" does not excuse the Agency from its obligation to produce relevant evaluation records to admitted counsel under the protective order; to hold otherwise would render the protective order mechanism meaningless and would effectively permit agencies to shield relevant evaluation records from scrutiny in every bid protest in which a protective order has been issued.

The Agency bears the burden of demonstrating that redacted information is either irrelevant to the protest grounds or subject to a recognized privilege that overrides the production obligation under 4 C.F.R. § 21.3(d). That burden has not been met here. The relevance of the redacted material to Grounds 1 and 2 is manifest from the face of the documents themselves: the unredacted fragments of Tabs 22 and 28 reference the very supply chain concerns that are at the heart of Whitmore's unequal discussions allegation, and the redactions have been applied in a manner that appears calculated to prevent counsel from ascertaining the full extent of the SSEB's documented concerns. The Agency has offered no privilege — executive privilege, deliberative process privilege, attorney-client privilege, or otherwise — as a basis for the withholdings. Absent such a showing, the redactions cannot stand.

VI. SPECIFIC RELIEF REQUESTED

Whitmore Aerospace LLC respectfully requests that the Government Accountability Office order the Department of the Air Force to produce complete, unredacted versions of the following three Agency Report tabs, for distribution to admitted counsel under the Protective Order issued October 12, 2023:

1. AR Tab 22 — SSEB Evaluation Notes, Factor 3(b) Supply Chain Risk Management (Halcyon). Whitmore requests unredacted production of this tab in its entirety, including all narrative evaluation text, adjectival rating worksheets, supporting notes, and any appendices or attachments thereto.

2. AR Tab 23 — SSEB Consensus Evaluation Briefing Slides, Factor 3 (Management Approach). Whitmore requests unredacted production of this tab in its entirety, including all slides, speaker notes, backup slides, and any supplemental materials that accompanied the briefing presentation.

3. AR Tab 28 — SSEB Individual Evaluator Worksheets, Factor 3(b) (Halcyon). Whitmore requests unredacted production of this tab in its entirety, including all individual evaluator narrative assessments, scoring worksheets, marginal notes, and any other individual evaluator documentation pertaining to the Supply Chain Risk Management subfactor evaluation of Halcyon's proposal.

Whitmore requests that production be made to admitted counsel under the Protective Order within five (5) business days of any order granting this request. Production should be made by the same method used for the initial distribution of the Agency Report — that is, by secure electronic transmission to counsel of record at Calderwood & Harkness LLP — with concurrent filing with GAO.

In the alternative, if GAO declines to order production of all three tabs, Whitmore respectfully requests that, at a minimum, AR Tabs 22 and 28 be produced in unredacted form. Tabs 22 and 28 contain the most granular and non-duplicative evaluation narratives bearing on both Grounds 1 and 2 of the protest. Tab 22 contains the SSEB's consensus evaluation narrative for Halcyon's Supply Chain Risk Management subfactor, while Tab 28 contains the individual evaluator assessments that informed the consensus evaluation. Together, these two tabs represent the core documentary evidence of the SSEB's identification of supply chain risk concerns that were not raised with Halcyon during discussions. Tab 23, while relevant, presents a higher-level summary that may be partially duplicative of the material in Tabs 22 and 28. Accordingly, if production of all three tabs is not ordered, production of Tabs 22 and 28 is the minimum necessary to ensure that protester's counsel can adequately address the protest grounds.

VII. CONCLUSION

The redacted portions of AR Tabs 22, 23, and 28 are directly relevant to the core protest grounds in this case, particularly Whitmore's allegation of materially unequal discussions (Ground 2) and its challenge to the reasonableness of the SSA's best-value tradeoff analysis (Ground 1). The SSEB's evaluation of Halcyon's Supply Chain Risk Management subfactor — including the identification, characterization, and documented severity of concerns regarding Halcyon's sole-source reliance on Meridian Semiconductor GmbH for critical GaAs sensor wafers — is central to both protest grounds and cannot be meaningfully analyzed by protester's counsel on the basis of the heavily redacted documents produced by the Agency.

The existing Protective Order provides more than adequate protection for the legitimate interests of the awardee, Halcyon Defense Systems Inc., and of the Agency. All admitted counsel and the designated technical advisor have executed acknowledgment forms and are bound by the Protective Order's comprehensive non-disclosure, restricted-access, and destruction/return provisions. No Whitmore personnel will have access to the protected material, and the intervenor's competitive position will not be compromised by disclosure to outside counsel and a technical advisor acting under the Protective Order's safeguards.

The Agency has not provided a sufficient basis for withholding this material from admitted counsel. No privilege log has been produced, no specific justifications have been offered for individual redactions, and no recognized privilege has been invoked. The redacted material is relevant, it is producible under the Protective Order, and its withholding impairs protester's counsel's ability to present Whitmore's case fully and fairly.

For the foregoing reasons, Whitmore Aerospace LLC respectfully urges GAO to order the Agency to produce complete, unredacted versions of AR Tabs 22, 23, and 28 to admitted counsel under the Protective Order, within five (5) business days of any order granting this request, to ensure a fair and complete resolution of this protest.

VIII. SIGNATURE AND CERTIFICATE OF SERVICE

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Claudia Merritt Responsible Partner

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

1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-3400 Facsimile: (202) 555-3401

Email: c.merritt@calderwoodharkness.com

Email: n.yardley@calderwoodharkness.com

Counsel for Protester, Whitmore Aerospace LLC

Date: November 6, 2023

CERTIFICATE OF SERVICE

I hereby certify that on November 6, 2023, a copy of the foregoing Protester's Request for Production of Unredacted Agency Report Tabs 22, 23, and 28 was served upon the following counsel of record by electronic filing through the GAO Electronic Protest Docketing System ("EPDS") and by email transmission:

Agency Counsel:

Captain Lucas M. Hargrove, USAF, JAG Trial Attorney SAF/GCQ, Office of the General Counsel Department of the Air Force 1740 Air Force Pentagon Washington, D.C. 20330

Email: lucas.hargrove.1@us.af.mil

Miriam T. Castellano Senior Attorney SAF/GCQ, Office of the General Counsel Department of the Air Force 1740 Air Force Pentagon Washington, D.C. 20330

Email: miriam.castellano@us.af.mil

Intervenor's Counsel:

Theodore J. Dunaway Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102

Email: tdunaway@kpdlaw.com

Rachel N. Sorensen Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102

Email: rsorensen@kpdlaw.com

________________________________________

Claudia Merritt Partner, Calderwood & Harkness LLP Counsel for Protester, Whitmore Aerospace LLC

Date: November 6, 2023

Whitmore Aerospace LLC,

Protester,	Case No. B-422187; B-422187.2
v.	Solicitation No. FA8222-23-R-0087
U.S. Department of the Air Force,	Contract No. FA8222-23-D-0193

Air Force Life Cycle Management Center (AFLCMC),

Sensors Directorate,

Wright-Patterson Air Force Base, Ohio 45433,

Agency,

Halcyon Defense Systems Inc.,

Awardee/Intervenor.

BEFORE THE COMPTROLLER GENERAL OF THE UNITED STATES UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE
PROTESTER'S REQUEST FOR PRODUCTION OF UNREDACTED AGENCY REPORT TABS 22, 23, AND 28
Filing Date: November 6, 2023
TABLE OF CONTENTS
Right-click to update Table of Contents
I. INTRODUCTION AND SUMMARY OF REQUEST
Calderwood & Harkness LLP, on behalf of protester Whitmore Aerospace LLC ("Whitmore" or "WAL"), a Virginia limited liability company headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171, respectfully requests that the Government Accountability Office ("GAO") order the Department of the Air Force (the "Agency") to produce complete, unredacted versions of Agency Report ("AR") Tabs 22, 23, and 28 under the Protective Order issued October 12, 2023 (the "Protective Order"), which governs access to proprietary and source selection sensitive information in this matter.
The Agency filed its Agency Report on October 30, 2023. Protective-order versions of the Agency Report documents were distributed to protester's outside counsel of record on October 31, 2023. Upon careful review, protester's counsel has determined that AR Tabs 22, 23, and 28 — each of which pertains to the Source Selection Evaluation Board's ("SSEB") evaluation of the awardee Halcyon Defense Systems Inc.'s ("Halcyon" or "HDS") proposal under the Supply Chain Risk Management subfactor (Factor 3(b)) of the Management Approach evaluation factor — were produced in a heavily redacted form that renders them largely unusable for purposes of preparing Whitmore's protest comments.
Specifically, the redacted material obscures critical information regarding the SSEB's documented concerns about Halcyon's supply chain risk posture, including — as can be discerned from the remaining, unredacted fragments — the SSEB's analysis of Halcyon's reliance on a sole-source foreign subcontractor, Meridian Semiconductor GmbH, a German entity based in Dresden, Germany, for the production of critical gallium arsenide ("GaAs") sensor wafers used in Halcyon's proposed infrared countermeasure ("IRCM") pod design. These GaAs sensor wafers are a mission-critical component of the IRCM pod assemblies that are the subject of the solicitation at issue.
The redacted material contained in Tabs 22, 23, and 28 is directly relevant to Whitmore's Ground 2 of protest, which alleges that the Agency conducted materially unequal discussions in violation of the FAR and governing procurement law by raising concerns with Whitmore but failing to raise documented concerns of comparable or greater significance with the awardee. The redacted material also bears directly upon Whitmore's Ground 1, which challenges the reasonableness of the Source Selection Authority's best-value tradeoff analysis under FAR 15.308, because the SSEB's internal assessment of Halcyon's supply chain risks should have been — but apparently was not — meaningfully weighed in the tradeoff determination that led to award at a price premium of $17,400,000 (4.82%) over Whitmore's lower-priced, technically competitive proposal.
The existing Protective Order provides more than adequate safeguards to protect the legitimate competitive and proprietary interests of the awardee, Halcyon, and the source selection sensitive interests of the Agency. All admitted counsel — Claudia Merritt, Lt. Col. (Ret.) Nathan Yardley, and Megan Zhao of Calderwood & Harkness LLP — and the designated technical advisor, Janet K. Overmeyer, Principal of Ridgeline Consulting Group LLC, have executed the requisite acknowledgment forms and are bound by the Protective Order's comprehensive non-disclosure, restricted-access, and destruction/return provisions. Accordingly, there is no basis for the Agency to withhold this material from counsel admitted under the Protective Order, and Whitmore respectfully requests that GAO order prompt production.
II. PROCEDURAL BACKGROUND
A. Solicitation and Award
On March 14, 2023, the United States Department of the Air Force, through the Air Force Life Cycle Management Center (AFLCMC), Sensors Directorate, Wright-Patterson Air Force Base, Ohio 45433, issued Solicitation No. FA8222-23-R-0087 (the "Solicitation") for an indefinite-delivery/indefinite-quantity ("IDIQ") contract for the design, development, production, and sustainment of advanced infrared countermeasure ("IRCM") pod assemblies. The Solicitation contemplated a single-award IDIQ contract with a total ceiling value of $387,500,000 over a five-year ordering period, consisting of one base year and four one-year option periods. The IRCM pod assemblies to be procured under the contract are intended for integration onto multiple fixed-wing and rotary-wing platforms in the Air Force inventory, and the solicitation specified stringent performance, quality, and supply chain requirements reflecting the mission-critical nature of the deliverables.
The Solicitation was amended three times during the pre-proposal period. Amendment 0001 was issued on April 7, 2023, and addressed minor administrative corrections and clarifications to Section L proposal instructions. Amendment 0002 was issued on April 28, 2023, and made substantive revisions to the procurement: it added Contract Data Requirements List ("CDRL") item A015, which required offerors to submit a detailed International Traffic in Arms Regulations ("ITAR") compliance plan as part of their Management Approach volume, and it revised the Section M evaluation criteria to, among other things, clarify the relationship between the Supply Chain Risk Management subfactor (Factor 3(b)) and the overall Management Approach factor (Factor 3). Amendment 0003 was issued on May 12, 2023, and extended the proposal due date and made final revisions to certain technical requirements in Section C.
Proposals were due on June 2, 2023. The Agency received proposals from multiple offerors and, following initial evaluation, established the competitive range on August 3, 2023. Three offerors were included in the competitive range: Whitmore Aerospace LLC, Halcyon Defense Systems Inc., and Marlowe Asset Management Electro-Optics Corp. ("Marlowe Asset Management"). Marlowe Asset Management was subsequently eliminated from the competitive range prior to the conclusion of discussions.
The Agency conducted discussions with the remaining competitive range offerors during the period of August 14 through August 25, 2023. As discussed in greater detail below, during this discussion period the Agency issued two Evaluation Notices ("ENs") to Whitmore — designated EN-WAL-001 and EN-WAL-002 — identifying alleged weaknesses in Whitmore's proposal under the Manufacturing Readiness subfactor (Factor 1(b)) of the Technical Approach factor (Factor 1). The record reflects that no Evaluation Notices were issued to Halcyon regarding its Supply Chain Risk Management subfactor (Factor 3(b)), notwithstanding the SSEB's documented identification of concerns in that area.
Following discussions, final proposal revisions ("FPRs") were due on September 1, 2023. The Source Selection Authority, Brigadier General Harlan T. Jeffcoat, USAF, made the award decision, and the Air Force awarded Contract No. FA8222-23-D-0193 to Halcyon Defense Systems Inc. on September 15, 2023. Halcyon's proposal received an evaluated total price of $361,200,000. Whitmore's proposal received an evaluated total price of $343,800,000 — a price differential of $17,400,000, or approximately 4.82%, in Whitmore's favor. Despite Whitmore's lower price, the SSA determined that Halcyon's proposal represented the best value to the Government, relying principally on Halcyon's "Outstanding" rating under the Manufacturing Readiness subfactor (Factor 1(b)), as documented in the Source Selection Decision Document ("SSDD").
B. Protest Filing and Current Status
On September 22, 2023, the Agency conducted an enhanced written debriefing of Whitmore's proposal in accordance with the requirements of 10 U.S.C. § 3304. Following receipt and analysis of the debriefing materials, Whitmore timely filed this protest with GAO on September 26, 2023, within the ten-day post-debriefing filing deadline established by 4 C.F.R. § 21.2(a)(2).
GAO issued its notice of protest on September 27, 2023. Upon issuance of that notice, the Competition in Contracting Act ("CICA") automatic stay of contract performance took effect under 31 U.S.C. § 3553(c)(1), precluding the Agency from proceeding with performance under the awarded contract pending GAO's resolution of the protest.
On October 2, 2023, Halcyon Defense Systems Inc. filed a notice of intervention in this matter through its counsel of record, Kessler, Pratt & Dunaway LLP, located at 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102. The lead counsel for the intervenor is Theodore J. Dunaway, partner, and Rachel N. Sorensen, associate.
On October 12, 2023, GAO issued the Protective Order upon application by Calderwood & Harkness LLP on behalf of the protester. The Protective Order governs the handling, use, and disclosure of proprietary, source selection sensitive, and competition-sensitive information produced in connection with this protest. Protester's counsel — Claudia Merritt (responsible partner), Lt. Col. (Ret.) Nathan Yardley (of counsel), and Megan Zhao (associate) — and the designated technical advisor, Janet K. Overmeyer, Principal of Ridgeline Consulting Group LLC, were admitted under the Protective Order and executed the required acknowledgment forms.
The Agency requested a twenty-day extension to the filing deadline for the Agency Report. On October 18, 2023, GAO granted a partial extension, providing the Agency ten additional days of the requested twenty-day extension. The Agency filed its Agency Report on October 30, 2023, and protective-order versions were distributed to protester's outside counsel on October 31, 2023.
Upon review of the Agency Report, protester's counsel identified the heavy redactions at issue in AR Tabs 22, 23, and 28, which form the basis of this request. Protester's counsel conferred with Agency counsel regarding the redactions prior to filing this request but was unable to resolve the matter informally.
C. Protest Grounds at Issue
Whitmore's protest raises two grounds that are relevant to the present production request:
Ground 1 — Unreasonable Best-Value Tradeoff Analysis. Whitmore alleges that the Source Selection Authority's best-value tradeoff analysis was unreasonable and failed to comply with FAR 15.308. Specifically, the SSDD prepared by Brigadier General Harlan T. Jeffcoat fails to provide any substantive rationale explaining why Halcyon's "Outstanding" rating under Factor 1(b) (Manufacturing Readiness) justified paying $17,400,000 (4.82%) more than Whitmore's proposal. The SSDD contains only conclusory statements that Halcyon's manufacturing readiness approach was "superior" without articulating the specific benefits that warranted the substantial price premium. A meaningful tradeoff analysis necessarily requires consideration of all evaluation factors, including the relative risks associated with each offeror's proposal — including supply chain risks documented in the SSEB evaluation record. The redacted material at issue in this request bears directly on whether the SSA meaningfully considered the supply chain risks associated with Halcyon's proposal, or whether the SSA's tradeoff analysis was unreasonably narrow in scope.
Ground 2 — Unequal Discussions. Whitmore alleges that the Agency conducted materially unequal discussions during the August 14–25, 2023, discussion period in violation of FAR 15.306(d). The Agency issued two Evaluation Notices to Whitmore — EN-WAL-001 and EN-WAL-002 — identifying alleged weaknesses in Whitmore's Manufacturing Readiness subfactor (Factor 1(b)). However, the Agency failed to issue any Evaluation Notices to Halcyon regarding its Supply Chain Risk Management subfactor (Factor 3(b)), which received only an "Acceptable" rating — the lowest passing rating — despite internal SSEB evaluation notes identifying a "significant concern" about Halcyon's reliance on Meridian Semiconductor GmbH as a sole-source foreign subcontractor for critical GaAs sensor wafers. The standard for meaningful discussions requires that the Agency address all weaknesses, significant weaknesses, and deficiencies identified in an offeror's proposal, and the failure to raise a documented "significant concern" with Halcyon while simultaneously challenging Whitmore on a different subfactor constitutes the kind of materially unequal treatment that GAO has consistently sustained as a basis for protest. The redacted material in Tabs 22, 23, and 28 is essential to proving this ground because it is expected to contain the SSEB's full narrative documentation of the supply chain concerns that were identified but never communicated to Halcyon.
III. DESCRIPTION OF REQUESTED DOCUMENTS
Whitmore requests unredacted production of three specific tabs from the Agency Report, each of which relates to the SSEB's evaluation of Halcyon's proposal under Factor 3(b), Supply Chain Risk Management, a subfactor of the Management Approach evaluation factor (Factor 3). Each tab is described in detail below.
A. AR Tab 22 — SSEB Evaluation Notes, Factor 3(b) Supply Chain Risk Management (Halcyon)
AR Tab 22 is titled as the SSEB's evaluation notes for Halcyon's proposal under Factor 3(b), Supply Chain Risk Management. Based on the unredacted portions visible in the protective-order version produced to counsel, it is apparent that this tab documents the SSEB's collective evaluation of Halcyon's approach to managing supply chain risks associated with its proposed IRCM pod design and production.
The unredacted portions of Tab 22 indicate that the SSEB assigned Halcyon a rating of "Acceptable" under the Supply Chain Risk Management subfactor. Fragments of visible text confirm that the SSEB evaluated Halcyon's supply chain approach and identified areas of concern. The unredacted text includes references to "sole-source" supply arrangements and "foreign subcontractor" concerns, providing partial confirmation that the SSEB examined the risks associated with Halcyon's reliance on a single, non-domestic supplier for a critical component.
However, significant portions of Tab 22 — estimated by counsel at approximately 60 to 70 percent of the substantive text — have been redacted by the Agency. The redactions obscure the identity of the specific subcontractor at issue, the specific components or materials subject to sole-source risk, the full scope of the SSEB's documented concerns, and critically, the characterization of the severity of those concerns (i.e., whether they were classified as a "weakness," "significant weakness," "significant concern," "risk," or some other designation under the evaluation methodology employed by the SSEB). The redactions also appear to cover any narrative discussion of mitigation measures proposed by Halcyon and the SSEB's assessment of the adequacy of those measures.
Tab 22 is directly relevant to Ground 2 of Whitmore's protest because it is expected to contain the SSEB's identification and full documentation of the "significant concern" regarding Halcyon's reliance on Meridian Semiconductor GmbH for GaAs sensor wafers — a concern that, based on the available unredacted portions of the record, the Agency failed to raise with Halcyon during the August 14–25, 2023, discussion period by means of an Evaluation Notice or otherwise. Without access to the SSEB's complete evaluation narrative in this tab, protester's counsel cannot adequately characterize the nature and severity of the concern identified by the SSEB, nor can counsel meaningfully compare it to the concerns raised with Whitmore through EN-WAL-001 and EN-WAL-002 — a comparison that is central to the unequal discussions analysis.
B. AR Tab 23 — SSEB Consensus Evaluation Briefing Slides, Factor 3 (Management Approach)
AR Tab 23 contains the SSEB's consensus evaluation briefing slides for Factor 3 (Management Approach), as presented to the Source Selection Advisory Council ("SSAC") and/or the Source Selection Authority ("SSA") during the source selection process. These slides constitute a summary-level presentation of the SSEB's findings and recommendations under all subfactors of the Management Approach factor, including the Supply Chain Risk Management subfactor (Factor 3(b)).
Review of the protective-order version of Tab 23 reveals that the redactions in this tab overlap substantially with the material redacted in Tabs 22 and 28. The redacted slides appear to cover the SSEB's summary assessment of Supply Chain Risk Management for all offerors in the competitive range, including its comparative presentation of the strengths, weaknesses, risks, and significant concerns identified in each offeror's proposal under Factor 3(b). Because the briefing slides are a summary presentation format, Tab 23 appears to present a higher-level distillation of findings that are documented in more granular narrative detail in Tabs 22 and 28. Nonetheless, the slides may contain summary characterizations, comparative matrices, or other synthesis material that is not available elsewhere in the record and that is relevant to both Grounds 1 and 2.
Whitmore requests production of Tab 23 in unredacted form to ensure that the complete SSEB evaluation record for Factor 3 is available to protester's counsel for analysis and for the preparation of protest comments.
C. AR Tab 28 — SSEB Individual Evaluator Worksheets, Factor 3(b) (Halcyon)
AR Tab 28 contains the individual SSEB evaluator worksheets for Halcyon's proposal under Factor 3(b), Supply Chain Risk Management. These worksheets document the individual assessments of each SSEB panel member prior to the consensus evaluation documented in Tab 22. The individual evaluator worksheets are particularly probative because they may reflect the independent judgments of individual evaluators — including areas of concern that may have been raised, debated, and either adopted or not adopted by the consensus panel.
The redacted portions of Tab 28 are expected to contain individual evaluators' narrative assessments of the supply chain concentration risk associated with Halcyon's reliance on Meridian Semiconductor GmbH as the sole source for GaAs sensor wafers. These individual assessments may include notations characterizing this supply chain dependency as a "weakness," "significant weakness," "significant concern," "risk," or other designation, and may include individual evaluators' recommended ratings or narrative comments that informed the consensus evaluation. In particular, the individual evaluator notes of SSEB Chair Dr. Yolanda R. Fenn, if included in this tab, would be particularly probative of whether the supply chain risk was formally identified and documented during the evaluation process and how it was characterized by the SSEB leadership. Dr. Fenn's individual assessment may also shed light on whether the SSEB considered recommending an Evaluation Notice to Halcyon on this issue and, if so, why such a notice was not issued.
Tab 28 is critical to establishing that the Agency was aware of the supply chain risk associated with Halcyon's sole-source foreign subcontractor reliance prior to and during the August 14–25, 2023, discussion period, but affirmatively chose not to raise this documented concern with Halcyon — while simultaneously issuing two Evaluation Notices to Whitmore on a different subfactor (Manufacturing Readiness). This contemporaneous documentary evidence of the SSEB's pre-discussion awareness of the supply chain concern is essential to the merits of Ground 2 and cannot be reconstructed from other portions of the Agency Report.
IV. LEGAL STANDARD FOR DOCUMENT PRODUCTION IN GAO BID PROTESTS
The legal standard governing document production in GAO bid protests is well established and strongly favors the production of a complete, unredacted evaluation record to counsel admitted under a protective order.
Under 4 C.F.R. § 21.3(d), the contracting agency is required to produce, as part of the Agency Report, "all documents relevant to the protest," including "the contracting officer's statement of relevant facts," the solicitation, the protester's proposal, the awardee's proposal, evaluation records, source selection materials, and all internal memoranda, correspondence, and other documents bearing on the agency's award decision. The regulation reflects the GAO's longstanding recognition that the integrity of the protest process depends on the availability of a complete and accurate record for review by the protester's counsel and by GAO's adjudicatory attorneys.
The GAO has consistently held that the agency's obligation to produce a complete record is to be broadly construed. Redactions to Agency Report documents are inappropriate where the redacted material is relevant to one or more properly raised protest grounds and where the information can be adequately protected under a GAO protective order. The protective order mechanism exists precisely to permit counsel to access competitively sensitive and source selection sensitive material in a controlled manner that safeguards the legitimate interests of all parties while ensuring the fairness and completeness of the protest proceeding.
GAO precedent is clear that where a protester demonstrates that redacted material is relevant to a properly raised protest ground, GAO will order production of the unredacted material under the protective order. The standard is one of relevance, not indispensability: the protester need not demonstrate that the redacted material is the only evidence available on a given point, but rather that it is relevant to the protest grounds and that its withholding impairs the protester's ability to present its case. See, e.g., Apptis, Inc., B-299457, 2007 CPD ¶ 49 (ordering production of evaluation materials relevant to protest grounds); Pemco World Air Servs., Inc., B-284219.3, 2000 CPD ¶ 70 (requiring disclosure of source selection materials under protective order); Ashbury Partners LLC, B-409651, 2014 CPD ¶ 224 (emphasizing the importance of a complete record in source selection protests). As GAO has noted, "[t]he purpose of an agency report is to provide GAO and the parties with a complete statement of the relevant facts and a memorandum of law, so that the issues can be resolved on the basis of a full and complete administrative record."
The Protective Order issued October 12, 2023, in this matter provides robust and adequate safeguards for the handling of source selection sensitive and proprietary information. The order restricts access to protected material to admitted counsel and the designated technical advisor, all of whom have executed acknowledgment forms committing to compliance with the order's terms. Specifically, the following individuals have been admitted under the Protective Order and have executed the required acknowledgment forms:
•  Claudia Merritt, Partner, Calderwood & Harkness LLP — Responsible Partner and lead protest counsel for Whitmore;
•  Lt. Col. (Ret.) Nathan Yardley, Of Counsel, Calderwood & Harkness LLP — Senior counsel with extensive experience in defense procurement matters;
•  Megan Zhao, Associate, Calderwood & Harkness LLP — Associate counsel assisting in the preparation of protest comments and legal analysis; and
•  Janet K. Overmeyer, Principal, Ridgeline Consulting Group LLC — Designated technical advisor with expertise in IRCM systems and defense supply chain management, retained to assist counsel in understanding and analyzing the technical aspects of the evaluation record.
Each of these individuals is bound by the Protective Order's comprehensive provisions regarding non-disclosure, restricted access, secure storage, and ultimate destruction or return of all protected materials upon conclusion of the protest. None of these individuals is an employee, officer, director, or agent of Whitmore Aerospace LLC, and the Protective Order expressly prohibits disclosure of protected material to any Whitmore personnel. The safeguards in place are consistent with, and in fact exceed, the protections that GAO routinely deems sufficient to justify production of source selection sensitive materials in bid protest proceedings.
V. ARGUMENT: THE REQUESTED TABS ARE DIRECTLY RELEVANT AND NECESSARY
A. Relevance to Ground 2 (Unequal Discussions)
Whitmore's Ground 2 alleges that the Agency conducted materially unequal discussions in violation of FAR 15.306(d) and governing case law. The gravamen of this protest ground is straightforward: during the August 14–25, 2023, discussion period, the Agency issued two Evaluation Notices to Whitmore — EN-WAL-001 and EN-WAL-002 — identifying alleged weaknesses in Whitmore's proposal under the Manufacturing Readiness subfactor (Factor 1(b)). These Evaluation Notices required Whitmore to expend substantial time and resources addressing the Agency's concerns and revising its proposal. At the same time, the Agency failed to issue any Evaluation Notices, or otherwise raise during discussions, its documented concerns about Halcyon's Supply Chain Risk Management subfactor (Factor 3(b)), despite internal SSEB evaluation notes identifying a "significant concern" regarding Halcyon's reliance on Meridian Semiconductor GmbH as a sole-source foreign subcontractor for critical GaAs sensor wafers.
The standard for meaningful discussions under FAR 15.306(d) requires that the agency, at a minimum, discuss with each offeror "adverse past performance information to which the offeror has not had an opportunity to respond," "deficiencies, significant weaknesses, and adverse past performance information," and other concerns that could materially affect the evaluation of the offeror's proposal. While agencies enjoy discretion in the conduct of discussions, that discretion is not unlimited: discussions must be "meaningful," they must not mislead offerors, and they must be conducted on a reasonably equal basis among all competitive range offerors. See FAR 15.306(d)(3); see also Ashford & Co., B-408134.3, 2013 CPD ¶ 169; Ashbury Partners LLC, B-409651, 2014 CPD ¶ 224; Global Eng'g & Constr. Joint Venture, B-412497.2, 2016 CPD ¶ 136.
The unredacted portions of the Agency Report and the Contracting Officer's Statement of Facts ("COSF"), filed by Contracting Officer Colonel Diane W. Prescott and Contract Specialist Vincent R. Talmadge, confirm that the SSEB did, in fact, identify concerns regarding Halcyon's supply chain approach under Factor 3(b). The COSF references "areas of risk" identified by the SSEB but provides no detail regarding the specific nature, scope, or severity of those concerns. The unredacted fragments of Tabs 22 and 28 likewise confirm the existence of documented concerns but redact the substantive detail.
The specific nature and severity of those concerns — which bear directly on whether the Agency was obligated to raise them during discussions as weaknesses or significant weaknesses — are contained in the redacted portions of Tabs 22, 23, and 28. Without access to the full SSEB evaluation narrative, protester's counsel cannot adequately perform the central inquiry required under the unequal discussions standard: a comparison of the significance of the concerns raised with Whitmore (through EN-WAL-001 and EN-WAL-002) against the significance of the concerns known to the SSEB but not raised with Halcyon. If the SSEB's documented concerns about Halcyon's sole-source foreign subcontractor reliance were of equal or greater severity than the concerns raised with Whitmore, then the Agency's failure to issue an Evaluation Notice to Halcyon on this topic would constitute precisely the kind of materially unequal treatment that GAO has consistently held to be prejudicial and sustain-worthy in bid protest jurisprudence.
Protester's counsel cannot make this comparison — and GAO cannot adjudicate this protest ground on a complete record — if 60 to 70 percent of the SSEB's substantive evaluation narrative for Halcyon's Supply Chain Risk Management subfactor remains concealed behind redactions.
B. Relevance to Ground 1 (Unreasonable Best-Value Tradeoff)
The redacted material in Tabs 22, 23, and 28 is also directly relevant to Whitmore's Ground 1, which challenges the reasonableness of the SSA's best-value tradeoff analysis.
Under FAR 15.308, the source selection authority is required to document the rationale for the source selection decision, including the basis for any tradeoffs made among cost or price and non-cost evaluation factors. Where a best-value determination results in award to a higher-priced offeror, the SSA must articulate a rational basis for concluding that the technical superiority of the higher-priced proposal is worth the associated price premium. See Westvale Partners LLC, B-411465, 2015 CPD ¶ 228; Aldermere Industries, B-413120.3, 2017 CPD ¶ 70.
The SSEB's internal assessment of Halcyon's Supply Chain Risk Management bears directly on the reasonableness of the SSA's overall tradeoff determination. Halcyon received a rating of "Acceptable" on Factor 3(b), Supply Chain Risk Management — the lowest passing rating under the evaluation methodology — while Whitmore received a rating of "Good" on the same subfactor. Thus, with respect to at least one evaluation subfactor, Whitmore's proposal was demonstrably superior to Halcyon's. A reasonable tradeoff analysis necessarily requires the SSA to weigh all evaluation factors and to consider the relative risks associated with each offeror's proposal, including the supply chain risks documented in the SSEB evaluation record.
The redacted material in Tabs 22, 23, and 28 may reveal that the SSEB's concerns regarding Halcyon's supply chain risk posture were more significant than the "Acceptable" adjectival rating suggests. In particular, the individual evaluator worksheets in Tab 28 may show that one or more evaluators initially recommended a lower rating or identified the supply chain concentration risk as a "weakness" or "significant weakness" that was subsequently mitigated to an "Acceptable" rating at the consensus level. Such evidence would further undermine the adequacy of the SSA's documented rationale, which appears to have given little or no weight to the comparative supply chain risk profiles of the competing proposals when determining that Halcyon's proposal warranted a $17,400,000 price premium over Whitmore's proposal.
Without access to the complete SSEB evaluation narrative, Whitmore cannot fully develop its argument that the SSA's tradeoff analysis was unreasonably narrow and failed to account for documented supply chain risks that, if properly weighed, should have counseled against award to the higher-priced offeror.
C. The Protective Order Provides Adequate Safeguards
The Protective Order issued by GAO on October 12, 2023, provides comprehensive safeguards that are more than adequate to protect the legitimate proprietary, competitive, and source selection sensitive interests of the awardee, Halcyon Defense Systems Inc., and of the Agency.
All counsel admitted under the Protective Order have executed acknowledgment forms and are bound by the order's terms. The Protective Order expressly prohibits disclosure of protected material to any Whitmore Aerospace LLC personnel, including but not limited to:
•  Marcus J. Whitmore, Chief Executive Officer;
•  Donald R. Stokes, Vice President, Government Contracts;
•  Patricia Langford, Chief Financial Officer; and
•  All other employees, officers, directors, agents, and representatives of Whitmore Aerospace LLC.
Protected material is required to be stored in accordance with the Protective Order's security provisions, used solely for the purpose of this protest proceeding, and ultimately returned to the producing party or destroyed upon the conclusion of the protest, with a certification of compliance filed with GAO. The Protective Order further requires that any filings containing protected material be submitted in redacted and unredacted versions, with the unredacted versions provided only to admitted counsel and GAO.
The intervenor Halcyon's competitive interests are therefore adequately protected. Halcyon's proprietary technical data, pricing information, and proposal content will be viewed only by admitted outside counsel and the designated technical advisor, none of whom is an employee, officer, or agent of Whitmore. The admitted technical advisor, Ms. Overmeyer, is an independent consultant retained specifically for this engagement and has no ongoing commercial relationship with Whitmore outside of this protest matter. These protections are fully consistent with the safeguards that GAO routinely relies upon when ordering production of competitively sensitive materials in bid protests, and they ensure that disclosure to admitted counsel will not result in any competitive harm to the awardee.
D. The Agency Has Not Articulated a Sufficient Basis for the Redactions
The Agency's redactions to AR Tabs 22, 23, and 28 are not accompanied by a privilege log, a redaction index, or any specific justification for each individual redaction, as is required under GAO practice. The Agency has provided no document-by-document or redaction-by-redaction explanation identifying the specific basis on which each passage has been withheld. Instead, the Agency has applied broad, undifferentiated redactions across these three tabs without providing the protester or GAO with any meaningful basis to evaluate the propriety of the withholdings.
To the extent the Agency would assert that the redacted material is "source selection sensitive" or "proprietary," such boilerplate assertions are insufficient to justify withholding where, as here, a Protective Order is already in place and governs access to precisely such material. The entire purpose of the Protective Order mechanism is to permit the disclosure of source selection sensitive and proprietary information to qualified counsel under controlled conditions. A blanket assertion that information is "source selection sensitive" does not excuse the Agency from its obligation to produce relevant evaluation records to admitted counsel under the protective order; to hold otherwise would render the protective order mechanism meaningless and would effectively permit agencies to shield relevant evaluation records from scrutiny in every bid protest in which a protective order has been issued.
The Agency bears the burden of demonstrating that redacted information is either irrelevant to the protest grounds or subject to a recognized privilege that overrides the production obligation under 4 C.F.R. § 21.3(d). That burden has not been met here. The relevance of the redacted material to Grounds 1 and 2 is manifest from the face of the documents themselves: the unredacted fragments of Tabs 22 and 28 reference the very supply chain concerns that are at the heart of Whitmore's unequal discussions allegation, and the redactions have been applied in a manner that appears calculated to prevent counsel from ascertaining the full extent of the SSEB's documented concerns. The Agency has offered no privilege — executive privilege, deliberative process privilege, attorney-client privilege, or otherwise — as a basis for the withholdings. Absent such a showing, the redactions cannot stand.
VI. SPECIFIC RELIEF REQUESTED
Whitmore Aerospace LLC respectfully requests that the Government Accountability Office order the Department of the Air Force to produce complete, unredacted versions of the following three Agency Report tabs, for distribution to admitted counsel under the Protective Order issued October 12, 2023:
1.  AR Tab 22 — SSEB Evaluation Notes, Factor 3(b) Supply Chain Risk Management (Halcyon). Whitmore requests unredacted production of this tab in its entirety, including all narrative evaluation text, adjectival rating worksheets, supporting notes, and any appendices or attachments thereto.
2.  AR Tab 23 — SSEB Consensus Evaluation Briefing Slides, Factor 3 (Management Approach). Whitmore requests unredacted production of this tab in its entirety, including all slides, speaker notes, backup slides, and any supplemental materials that accompanied the briefing presentation.
3.  AR Tab 28 — SSEB Individual Evaluator Worksheets, Factor 3(b) (Halcyon). Whitmore requests unredacted production of this tab in its entirety, including all individual evaluator narrative assessments, scoring worksheets, marginal notes, and any other individual evaluator documentation pertaining to the Supply Chain Risk Management subfactor evaluation of Halcyon's proposal.
Whitmore requests that production be made to admitted counsel under the Protective Order within five (5) business days of any order granting this request. Production should be made by the same method used for the initial distribution of the Agency Report — that is, by secure electronic transmission to counsel of record at Calderwood & Harkness LLP — with concurrent filing with GAO.
In the alternative, if GAO declines to order production of all three tabs, Whitmore respectfully requests that, at a minimum, AR Tabs 22 and 28 be produced in unredacted form. Tabs 22 and 28 contain the most granular and non-duplicative evaluation narratives bearing on both Grounds 1 and 2 of the protest. Tab 22 contains the SSEB's consensus evaluation narrative for Halcyon's Supply Chain Risk Management subfactor, while Tab 28 contains the individual evaluator assessments that informed the consensus evaluation. Together, these two tabs represent the core documentary evidence of the SSEB's identification of supply chain risk concerns that were not raised with Halcyon during discussions. Tab 23, while relevant, presents a higher-level summary that may be partially duplicative of the material in Tabs 22 and 28. Accordingly, if production of all three tabs is not ordered, production of Tabs 22 and 28 is the minimum necessary to ensure that protester's counsel can adequately address the protest grounds.
VII. CONCLUSION
The redacted portions of AR Tabs 22, 23, and 28 are directly relevant to the core protest grounds in this case, particularly Whitmore's allegation of materially unequal discussions (Ground 2) and its challenge to the reasonableness of the SSA's best-value tradeoff analysis (Ground 1). The SSEB's evaluation of Halcyon's Supply Chain Risk Management subfactor — including the identification, characterization, and documented severity of concerns regarding Halcyon's sole-source reliance on Meridian Semiconductor GmbH for critical GaAs sensor wafers — is central to both protest grounds and cannot be meaningfully analyzed by protester's counsel on the basis of the heavily redacted documents produced by the Agency.
The existing Protective Order provides more than adequate protection for the legitimate interests of the awardee, Halcyon Defense Systems Inc., and of the Agency. All admitted counsel and the designated technical advisor have executed acknowledgment forms and are bound by the Protective Order's comprehensive non-disclosure, restricted-access, and destruction/return provisions. No Whitmore personnel will have access to the protected material, and the intervenor's competitive position will not be compromised by disclosure to outside counsel and a technical advisor acting under the Protective Order's safeguards.
The Agency has not provided a sufficient basis for withholding this material from admitted counsel. No privilege log has been produced, no specific justifications have been offered for individual redactions, and no recognized privilege has been invoked. The redacted material is relevant, it is producible under the Protective Order, and its withholding impairs protester's counsel's ability to present Whitmore's case fully and fairly.
For the foregoing reasons, Whitmore Aerospace LLC respectfully urges GAO to order the Agency to produce complete, unredacted versions of AR Tabs 22, 23, and 28 to admitted counsel under the Protective Order, within five (5) business days of any order granting this request, to ensure a fair and complete resolution of this protest.
VIII. SIGNATURE AND CERTIFICATE OF SERVICE
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Claudia Merritt Responsible Partner
Lt. Col. (Ret.) Nathan Yardley Of Counsel
1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-3400 Facsimile: (202) 555-3401
Email: c.merritt@calderwoodharkness.com
Email: n.yardley@calderwoodharkness.com
Counsel for Protester, Whitmore Aerospace LLC
Date: November 6, 2023
CERTIFICATE OF SERVICE
I hereby certify that on November 6, 2023, a copy of the foregoing Protester's Request for Production of Unredacted Agency Report Tabs 22, 23, and 28 was served upon the following counsel of record by electronic filing through the GAO Electronic Protest Docketing System ("EPDS") and by email transmission:
Agency Counsel:
Captain Lucas M. Hargrove, USAF, JAG Trial Attorney SAF/GCQ, Office of the General Counsel Department of the Air Force 1740 Air Force Pentagon Washington, D.C. 20330
Email: lucas.hargrove.1@us.af.mil
Miriam T. Castellano Senior Attorney SAF/GCQ, Office of the General Counsel Department of the Air Force 1740 Air Force Pentagon Washington, D.C. 20330
Email: miriam.castellano@us.af.mil
Intervenor's Counsel:
Theodore J. Dunaway Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102
Email: tdunaway@kpdlaw.com
Rachel N. Sorensen Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102
Email: rsorensen@kpdlaw.com
________________________________________
Claudia Merritt Partner, Calderwood & Harkness LLP Counsel for Protester, Whitmore Aerospace LLC
Date: November 6, 2023
Whitmore Aerospace LLC,
Protester, | Case No. B-422187; B-422187.2
v. | Solicitation No. FA8222-23-R-0087
U.S. Department of the Air Force, | Contract No. FA8222-23-D-0193
Air Force Life Cycle Management Center (AFLCMC),
Sensors Directorate,
Wright-Patterson Air Force Base, Ohio 45433,
Agency,
Halcyon Defense Systems Inc.,
Awardee/Intervenor.

BEFORE THE COMPTROLLER GENERAL OF THE UNITED STATES UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE

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