BEFORE THE UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE
PROTESTER'S SUPPLEMENTAL COMMENTS ON THE SUPPLEMENTAL AGENCY REPORT AND INTERVENOR'S COMMENTS
December 4, 2023
Engagement No. 1019-00003
Counsel for Protester:
Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006
Claudia Merritt, Responsible Partner Lt. Col. (Ret.) Nathan Yardley, Of Counsel Megan Zhao, Senior Associate Alan Burke, Associate Sara Hendricks, Associate
Right-click to update Table of Contents
I. INTRODUCTION AND SUMMARY
Whitmore Aerospace LLC ("Whitmore" or "Protester") respectfully submits these Supplemental Comments in response to (1) the Supplemental Agency Report filed by the United States Department of the Air Force ("Air Force" or "Agency") on November 27, 2023, and (2) the Intervenor's Comments filed by Halcyon Defense Systems Inc. ("Halcyon" or "Intervenor"), through its counsel of record, Kessler, Pratt & Dunaway LLP, on November 22, 2023. These Supplemental Comments are filed pursuant to the schedule established by the Government Accountability Office ("GAO") in its November 28, 2023, scheduling order, which set December 4, 2023, as the deadline for the protester's response to the supplemental filings.
This protest challenges the Air Force's award of a $387.5 million indefinite-delivery, indefinite-quantity ("IDIQ") contract, designated Contract No. FA8222-23-D-0193, for the design, manufacture, integration, and sustainment of advanced infrared countermeasure ("IRCM") pod assemblies to Halcyon under Solicitation No. FA8222-23-R-0087. The procurement was conducted as a competitive negotiated acquisition under Federal Acquisition Regulation ("FAR") Part 15, with award to be made on a best-value tradeoff basis. The solicitation was issued by the Air Force Life Cycle Management Center ("AFLCMC"), Sensors Directorate, located at Wright-Patterson Air Force Base, Ohio.
Neither the Supplemental Agency Report nor the Intervenor's Comments cure the fundamental deficiencies identified in Whitmore's initial protest, filed September 26, 2023, and Whitmore's Comments on the Agency Report, filed November 17, 2023. The Air Force's supplemental filing attempts to backfill the record with post hoc rationalizations for a source selection decision that was inadequately documented at the time it was made. Halcyon's filing, for its part, largely rehashes general principles of source selection authority without meaningfully addressing the specific factual and legal deficiencies Whitmore has identified. Neither filing provides a persuasive response to the core of Whitmore's challenge.
Whitmore's protest should be sustained on all four grounds. At minimum, Grounds 1 (unreasonable best-value tradeoff analysis) and 2 (materially unequal discussions) are clearly meritorious and independently warrant corrective action. As demonstrated below and in the prior filings, the Source Selection Authority ("SSA"), Brigadier General Harlan T. Jeffcoat, failed to document any substantive rationale for paying a $17.4 million price premium — representing 4.82% of the total evaluated price — for Halcyon's proposal over Whitmore's technically competitive proposal. Whitmore's evaluated total price of $343,800,000 was significantly lower than Halcyon's evaluated total price of $361,200,000, and the Source Selection Decision Document ("SSDD") failed to justify paying this premium with any analysis identifying the specific technical benefits or mission-enhancing features that purportedly warranted the additional expenditure of taxpayer funds.
Moreover, the discussions conducted during the August 2023 discussion period were materially unequal. The Air Force issued two Evaluation Notices to Whitmore regarding its Manufacturing Readiness subfactor while failing to raise a documented "significant concern" regarding Halcyon's sole-source dependency on a foreign subcontractor for critical sensor components — a concern identified by the Source Selection Evaluation Board ("SSEB") itself and memorialized in the evaluation record. This disparate treatment directly and prejudicially affected the relative standings of the two offerors and tainted the subsequent tradeoff analysis.
The supplemental filings from the Agency and the Intervenor fail to rehabilitate this flawed source selection. Whitmore respectfully requests that GAO sustain the protest and recommend corrective action as set forth in Section V below.
II. PROCEDURAL BACKGROUND
The following procedural history is relevant to these Supplemental Comments and supplements the background set forth in Whitmore's initial protest and its November 17, 2023, Comments on the Agency Report:
On March 14, 2023, the AFLCMC Sensors Directorate issued Solicitation No. FA8222-23-R-0087 for the design, manufacture, integration, test, and sustainment of advanced IRCM pod assemblies for integration on tactical fighter and rotary-wing platforms. The solicitation contemplated award of a single IDIQ contract on a best-value tradeoff basis under FAR Part 15.
Three amendments to the solicitation were subsequently issued. Amendment 0001, issued on April 7, 2023, made minor administrative corrections and extended the proposal due date. Amendment 0002, issued on April 28, 2023, made substantive changes to the solicitation, including the addition of Contract Data Requirements List ("CDRL") A015, which required offerors to submit a detailed International Traffic in Arms Regulations ("ITAR") compliance plan, and revisions to Section M evaluation criteria clarifying the relative importance of evaluation subfactors under Factor 3 (Management Approach). Amendment 0003, issued on May 12, 2023, incorporated updated technical specifications for the pod assembly's laser warning receiver subsystem and confirmed the final proposal due date.
Initial proposals were due and received on June 2, 2023. Three offerors submitted proposals: Whitmore, Halcyon, and Marlowe Asset Management Electro-Optics Corp. ("Marlowe Asset Management").
On August 3, 2023, the Contracting Officer, Colonel Diane W. Prescott, determined the competitive range. Marlowe Asset Management was eliminated from the competitive range based on its "Marginal" technical rating under Factor 1 (Technical Approach) and its evaluated price of $398.6 million. The competitive range consisted of two offerors: Whitmore and Halcyon.
The discussion period was conducted from August 14 through August 25, 2023. During this period, the Air Force issued two Evaluation Notices to Whitmore — designated EN-WAL-001 and EN-WAL-002 — both concerning identified concerns in Whitmore's Manufacturing Readiness subfactor under Factor 1. The significance of these Evaluation Notices, and the absence of corresponding notices to Halcyon regarding its own documented weaknesses, is addressed at length in Ground 2 of this filing.
Final proposal revisions were due and received on September 1, 2023.
On September 15, 2023, the Air Force announced award of Contract No. FA8222-23-D-0193 to Halcyon.
Whitmore received its unsuccessful offeror notification on September 18, 2023. An enhanced written debriefing was conducted on September 22, 2023, pursuant to 10 U.S.C. § 3304.
On September 26, 2023, Whitmore timely filed its protest with GAO, within the 10-day post-debriefing filing deadline established by 4 C.F.R. § 21.2(a)(2).
On September 27, 2023, GAO issued its notice of the protest to the Air Force. The Competition in Contracting Act ("CICA") automatic stay of contract performance became effective under 31 U.S.C. § 3553(c)(1).
On October 2, 2023, Halcyon filed its notice of intervention through counsel of record, Kessler, Pratt & Dunaway LLP (Theodore J. Dunaway, lead partner; Rachel N. Sorensen, associate), at 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102.
A Protective Order was issued by GAO on October 12, 2023, establishing procedures for the handling of proprietary and source-selection-sensitive information in the protest record.
The Air Force filed the Agency Report on October 30, 2023, comprising AR Tabs 1 through 47.
On November 6, 2023, Whitmore filed a request for partial document production, seeking unredacted versions of AR Tab 22 (SSEB Technical Evaluation Notes for Halcyon's Supply Chain Risk Management subfactor), AR Tab 23 (additional evaluator worksheets), and AR Tab 28 (SSEB chairperson's summary memorandum). On November 9, 2023, GAO ordered production of Tabs 22 and 28, finding that these documents were relevant and necessary to the protest. GAO denied production of Tab 23, finding it cumulative of information already in the record.
Whitmore filed its Comments on the Agency Report on November 17, 2023, addressing all four protest grounds in detail and incorporating the newly produced documents.
Halcyon filed the Intervenor's Comments on November 22, 2023.
The Air Force filed the Supplemental Agency Report on November 27, 2023, providing additional argument and limited additional documentation in response to Whitmore's November 17, 2023, Comments.
These Supplemental Comments are filed on December 4, 2023, in accordance with the GAO scheduling order.
A hearing on Ground 3 (Organizational Conflict of Interest) is currently scheduled for January 4, 2024.
III. EVALUATION FRAMEWORK AND RESULTS
An accurate understanding of the evaluation framework and the comparative evaluation results is essential to assessing the arguments raised in the Supplemental Agency Report and the Intervenor's Comments. Whitmore sets forth the following summary, which is consistent with the framework described in Section M of the Solicitation (AR Tab 5) and the evaluation results documented in the SSDD (AR Tab 1), SSEB Final Report (AR Tab 3), and SSA Briefing Slides (AR Tab 4).
A. Evaluation Criteria
Section M of the Solicitation established four evaluation factors, listed in descending order of relative importance:
Factor 1: Technical Approach — designated as "Most Important." This factor comprised three subfactors, listed in descending order of relative importance:
(a) System Design & Integration
(b) Manufacturing Readiness
(c) Test & Evaluation Plan
Factor 2: Past Performance — designated as "Important."
Factor 3: Management Approach — designated as "Important" and co-equal in weight with Factor 2. This factor comprised three subfactors, listed in descending order of relative importance:
(a) Program Management
(b) Supply Chain Risk Management
(c) ITAR/Export Compliance
Factor 4: Price — designated as "Least Important." The solicitation stated that technical and non-price factors, when combined, were "significantly more important" than price. Price was to be evaluated for reasonableness and realism. Section M specified that the Air Force "may select a higher-priced proposal if the perceived benefits of the higher-rated proposal merit the additional cost."
The solicitation employed the following adjectival rating scale for technical and management factors: Outstanding, Good, Acceptable, Marginal, and Unacceptable. Past performance was evaluated using a confidence assessment scale: Substantial Confidence, Satisfactory Confidence, Neutral Confidence, Limited Confidence, and No Confidence.
B. Evaluation Results
The SSEB's final evaluation ratings, as documented in the SSEB Final Report (AR Tab 3) and reflected in the SSDD (AR Tab 1), are set forth in the following table:
C. Comparative Advantages
The evaluation results reveal a mixed picture in which neither offeror dominated across all factors. Halcyon held a significant advantage under Subfactor 1(b), Manufacturing Readiness, where it received an "Outstanding" rating compared to Whitmore's "Acceptable" — a gap of two adjectival levels. This advantage in a single subfactor of the most important factor drove Halcyon's overall "Outstanding" rating under Factor 1, compared to Whitmore's overall "Good" rating.
However, Whitmore held advantages in multiple areas. Under Factor 3, Management Approach, Whitmore held the advantage in two of three subfactors: Subfactor 3(b), Supply Chain Risk Management, where Whitmore received "Good" compared to Halcyon's "Acceptable," and Subfactor 3(c), ITAR/Export Compliance, where Whitmore received "Outstanding" compared to Halcyon's "Good." The two offerors received identical ratings under Factor 2, Past Performance (both "Substantial Confidence"), and under Subfactors 1(a), 1(c), and 3(a).
Critically, Whitmore's evaluated total price of $343,800,000 was $17,400,000 lower than Halcyon's evaluated total price of $361,200,000 — a difference of 4.82%. The price premium the Agency elected to pay for Halcyon's proposal exceeded the contract's guaranteed minimum order value of $14,200,000.
The central question in this protest is whether the SSA's decision to pay this premium was adequately documented and supported by a rational tradeoff analysis. As demonstrated below, it was not.
IV. ARGUMENT
A. Ground 1: The SSA's Best-Value Tradeoff Analysis Was Unreasonable and Violated FAR 15.308
1. The Supplemental Agency Report Fails to Cure the SSDD's Deficient Rationale
The Air Force's Supplemental Agency Report, filed November 27, 2023, attempts to supplement the record with post hoc explanations for the SSA's tradeoff determination. This effort is unavailing for a fundamental reason: the explanations offered in the Supplemental AR were not contained in the original SSDD and do not reflect the contemporaneous reasoning of the SSA, Brigadier General Harlan T. Jeffcoat, at the time of the award decision.
It is well established that under FAR 15.308, the SSA's decision "shall be based on a comparative assessment of proposals against all source selection criteria in the solicitation." The SSA is required to document the rationale for any tradeoffs performed, the benefits associated with the additional costs, and the overall rationale for the selection decision. See FAR 15.308; see also Chenega Healthcare Servs., Inc., B-416528, B-416528.2, Sept. 27, 2018, 2018 CPD ¶ 340 at 11 (the SSDD must contain sufficient documentation to permit meaningful review of the tradeoff rationale). The SSDD itself must contain the substantive analysis upon which the award decision rests. It is the contemporaneous documentation — not counsel's briefing prepared months later for litigation purposes — that GAO examines in assessing the reasonableness of the source selection decision.
Here, the SSDD (AR Tab 1) is deficient on its face. The tradeoff analysis section of the SSDD spans fewer than two pages. The SSA's analysis merely restates the adjectival ratings assigned to each offeror under each factor and subfactor. With respect to the critical comparison between Whitmore and Halcyon, the SSDD notes that Halcyon received an "Outstanding" rating under Factor 1(b), Manufacturing Readiness, while Whitmore received an "Acceptable" rating. The SSDD then states, in conclusory fashion, that "Halcyon's technical approach, particularly its Manufacturing Readiness, represents a superior capability that warrants the modest price premium." AR Tab 1 at 14.
This is the entirety of the SSDD's substantive tradeoff rationale. The SSDD does not identify any specific technical benefits, discriminators, or mission-enhancing features of Halcyon's Manufacturing Readiness approach that justified paying $17.4 million more than Whitmore's price. It does not explain what aspects of Halcyon's manufacturing process were superior, what risks Halcyon's approach mitigated that Whitmore's did not, or how the specific technical advantages translated into operational benefits for the warfighter. The SSDD is devoid of the type of documented, reasoned analysis that FAR 15.308 demands.
The SSA Briefing Slides (AR Tab 4), the only other contemporaneous document bearing on the tradeoff, are no more illuminating. The slides contain summary charts of evaluation ratings and a single bullet point stating: "Halcyon's Outstanding Manufacturing Readiness represents significantly lower risk to production timeline." AR Tab 4 at Slide 18. This assertion, even if accepted at face value, does not constitute a tradeoff analysis — it is an unelaborated conclusion that fails to identify the specific basis for the SSA's judgment or to explain why the perceived reduction in production risk was worth $17.4 million.
The Supplemental AR's attempt to argue that the adjectival rating gap alone is sufficient to support the tradeoff ignores settled GAO precedent requiring the SSA to articulate what concrete technical advantages the higher-rated proposal offers and why those advantages are worth the price premium. See, e.g., Highmark, Inc., B-401062.5, Oct. 26, 2010, 2010 CPD ¶ 292 at 8 (sustaining protest where SSA's tradeoff rationale consisted of conclusory statements and failed to explain what the government was getting for the additional cost); SURVICE Eng'g Co., LLC, B-411927, B-411927.2, Nov. 13, 2015, 2015 CPD ¶ 363 at 9-10 (same). As GAO has repeatedly held, adjectival ratings are merely summary labels; they do not substitute for substantive analysis of specific proposal merits. See Patriot Taxiway Indus., Inc., B-405765, Dec. 27, 2011, 2012 CPD ¶ 51 at 7; Novetta Sols., LLC, B-411834, B-411834.2, Nov. 4, 2015, 2015 CPD ¶ 351 at 10.
The Supplemental AR cites no new evidence from the contemporaneous record to bolster the SSDD. There are no additional memoranda, no supplemental SSA analysis, and no newly discovered documentation that would fill the analytical void in the SSDD. The Supplemental AR is, in substance, an advocacy document crafted by Agency counsel — Captain Lucas M. Hargrove and Ms. Miriam T. Castellano — that impermissibly attempts to supply a rationale that the SSA himself did not articulate at the time of the decision. Post hoc rationalizations developed during the course of protest litigation cannot cure a contemporaneous record that lacks the required analytical foundation. See Sotera Def. Sols., Inc., B-405532, B-405532.2, Nov. 4, 2011, 2012 CPD ¶ 1 at 8.
2. The Intervenor's Arguments Regarding the Tradeoff Are Unavailing
Halcyon's Intervenor's Comments, filed on November 22, 2023, by Theodore J. Dunaway of Kessler, Pratt & Dunaway LLP, argue that the SSA had "inherent discretion" in the tradeoff determination and that Whitmore is "merely disagreeing with the agency's exercise of its source selection judgment." Intervenor's Comments at 8. This argument fundamentally mischaracterizes Whitmore's protest ground.
Whitmore does not challenge the SSA's judgment per se. Whitmore does not ask GAO to reweigh the proposals, to substitute its own assessment of technical merit, or to second-guess the SSA's conclusion that Manufacturing Readiness was a critically important discriminator. Rather, Whitmore challenges the complete absence of documented reasoning supporting that judgment. The distinction is both legally significant and factually dispositive in this case.
The discretion afforded the SSA in making a best-value tradeoff determination is not unlimited; it must be exercised in a reasoned manner and supported by a documented basis. See Ashford & Co., B-408134.3, B-408134.5, July 3, 2013, 2013 CPD ¶ 169 at 13 ("While we recognize the source selection authority's broad discretion in making a tradeoff, the exercise of that discretion must be documented and reflect a reasoned basis for the decision."). This requirement is particularly important where, as here, the price premium is significant — $17.4 million, representing 4.82% of the total evaluated price. Where the SSA elects to pay a substantial premium for a higher-rated proposal, GAO has consistently required that the contemporaneous record reflect a meaningful explanation of the specific benefits that justify the additional cost. See WorldTravelService, B-400421, Oct. 24, 2008, 2008 CPD ¶ 194 at 8.
Halcyon further contends that a two-level adjectival gap — Outstanding versus Acceptable in Manufacturing Readiness — "speaks for itself" and that no further analysis was required. Intervenor's Comments at 10. This contention is contrary to the weight of GAO precedent. Adjectival ratings are merely summary labels that reflect the evaluators' assessment; they do not, standing alone, constitute a tradeoff analysis. See Westvale Partners LLC, B-407762.3, June 7, 2013, 2013 CPD ¶ 160 at 8 ("The SSA may not rely on a comparison of adjectival ratings alone in making the tradeoff; the SSA must compare proposals and explain what specific technical advantages one proposal offers over another and why those advantages are worth the price premium."). The "Outstanding" rating tells the reader that the SSEB found Halcyon's Manufacturing Readiness approach to be exceptionally meritorious, but it does not tell the reader — or the SSA — why it was meritorious, what specific benefits it would confer, or how those benefits compared to the benefits of Whitmore's lower-priced proposal in other areas where Whitmore held advantages. That analytical work is what the tradeoff analysis is supposed to accomplish, and it was not done here.
3. The Tradeoff Failed to Account for Whitmore's Offsetting Advantages
Even if the SSDD's cursory reference to Halcyon's Manufacturing Readiness advantage were deemed minimally sufficient to identify a technical benefit (which it is not), the tradeoff analysis is independently flawed because it failed to meaningfully address Whitmore's offsetting advantages in multiple evaluation areas.
As detailed in Section III above, Whitmore held documented advantages in two subfactors under Factor 3, Management Approach — a factor that the solicitation designated as "Important" and co-equal in weight with Factor 2, Past Performance. Specifically, Whitmore received a "Good" rating under Subfactor 3(b), Supply Chain Risk Management, compared to Halcyon's "Acceptable" rating; and Whitmore received an "Outstanding" rating under Subfactor 3(c), ITAR/Export Compliance, compared to Halcyon's "Good" rating. In addition, Whitmore's evaluated total price was $17.4 million lower.
The SSDD does not address these advantages in any meaningful way. The tradeoff section acknowledges that Whitmore's price was lower but dismisses it with the observation that "technical/non-price factors, when combined, are significantly more important than price." AR Tab 1 at 14. While this statement accurately restates the solicitation's relative weighting, it does not constitute analysis. The solicitation's statement that technical factors are more important than price does not relieve the SSA of the obligation to explain why the specific technical advantages of the higher-priced proposal outweigh the specific advantages of the lower-priced proposal, including the price advantage itself. See Global Dynamics Int'l, Inc., B-403067, Aug. 4, 2010, 2010 CPD ¶ 187 at 6.
With respect to Whitmore's advantages under Factor 3, the SSDD is entirely silent. The SSDD does not acknowledge that Whitmore held a one-level adjectival advantage in Supply Chain Risk Management, does not discuss the significance of Whitmore's "Outstanding" ITAR/Export Compliance rating (a matter of particular relevance given the program's foreign military sales dimensions), and does not explain why Halcyon's advantage in one subfactor of the most important factor outweighed Whitmore's advantages in two subfactors of an important factor plus a $17.4 million price difference. This omission renders the tradeoff analysis incomplete and unreasonable. See NCI Info. Sys., Inc., B-405589, Nov. 23, 2011, 2011 CPD ¶ 269 at 6-7 (sustaining protest where SSA's tradeoff failed to consider the protester's advantages in other evaluated areas).
The solicitation required a reasoned tradeoff analysis that considered all evaluation factors, not selective reliance on a single subfactor to the exclusion of all other considerations. The SSDD's tunnel-vision focus on Manufacturing Readiness, without any documented consideration of the totality of evaluation results, does not satisfy this requirement.
4. The Price Differential Was Not De Minimis
The Supplemental Agency Report suggests, at pages 7-8, that the 4.82% price differential between Whitmore and Halcyon was "relatively modest" in the context of a contract with a ceiling value of $387.5 million, and that the narrowness of the price gap did not require extensive explanation in the SSDD. This argument fails for multiple reasons.
First, the relevant comparison is not between the price differential and the contract ceiling; it is between the price differential and the actual evaluated prices of the two offerors. The $17.4 million difference between Whitmore's $343.8 million evaluated price and Halcyon's $361.2 million evaluated price is substantial in absolute terms. It represents a significant expenditure of taxpayer funds that the SSA chose to incur without documented justification.
Second, the magnitude of the price premium is particularly striking when compared to the contract's guaranteed minimum order value. The IDIQ contract's guaranteed minimum is only $14,200,000. The price premium that the SSA elected to pay — $17,400,000 — exceeds the guaranteed minimum order value by $3.2 million, or approximately 22.5%. In other words, the Air Force agreed to pay more in additional cost for Halcyon's proposal than the minimum amount of work it is obligated to order under the contract. This comparison underscores the significance of the unexplained premium.
Third, GAO precedent does not establish a percentage threshold below which a tradeoff rationale becomes unnecessary. Whether a price difference is 2%, 5%, or 15%, the SSA must document specific reasons justifying the decision to pay the higher price. See Affordable Eng'g Servs., Inc., B-407180.4, B-407180.5, Aug. 21, 2013, 2013 CPD ¶ 212 at 8 (sustaining protest where SSA failed to document justification for a 3.6% price premium). The requirement for a documented rationale does not scale with the size of the premium; it applies whenever the SSA selects a higher-priced proposal over a lower-priced one. The Supplemental AR's suggestion to the contrary is inconsistent with the governing legal framework.
For all of these reasons, the Supplemental Agency Report and the Intervenor's Comments fail to rehabilitate the SSDD's deficient tradeoff analysis, and Ground 1 should be sustained.
B. Ground 2: The Agency Conducted Materially Unequal Discussions
1. The Supplemental Agency Report Confirms the Disparity
The Air Force's Supplemental Agency Report does not dispute the core factual predicates of Ground 2. Specifically, the Supplemental AR does not dispute that:
(a) The Air Force issued two Evaluation Notices — EN-WAL-001 and EN-WAL-002 — to Whitmore during the August 14-25, 2023, discussion period, both addressing identified concerns in Whitmore's Manufacturing Readiness subfactor under Factor 1;
(b) The Air Force issued zero Evaluation Notices to Halcyon regarding its Supply Chain Risk Management subfactor under Factor 3, despite Halcyon's receipt of only an "Acceptable" rating on that subfactor (compared to Whitmore's "Good" rating); and
(c) The SSEB, chaired by Dr. Yolanda R. Fenn, identified a "significant concern" about Halcyon's reliance on Meridian Semiconductor GmbH — a sole-source German supplier — for critical gallium arsenide ("GaAs") sensor wafers central to Halcyon's IRCM pod design.
These facts, which are now effectively undisputed, are drawn from the AR Tabs obtained through the November 9, 2023, document production order. Unredacted AR Tab 22 contains the SSEB's detailed Technical Evaluation Notes for Halcyon's Supply Chain Risk Management subfactor. Those notes identify, in specific terms, the SSEB's concern that Halcyon's IRCM pod design depends on a single foreign supplier — Meridian Semiconductor GmbH, a German-headquartered company — for gallium arsenide sensor wafers that are critical to the functionality of the IRCM system's infrared detection and tracking module. The evaluation notes state that Halcyon "identified no domestic alternative supplier" and that the Meridian supply chain pathway "represents a significant concern regarding supply continuity and resilience in a contested logistics environment." AR Tab 22 at 3.
Unredacted AR Tab 28, Dr. Fenn's SSEB chairperson summary memorandum, confirms that the SSEB discussed this concern during its August 10, 2023, evaluation consensus meeting and determined that it was a factor in Halcyon's "Acceptable" rating under Subfactor 3(b). AR Tab 28 at 7.
Despite this documented "significant concern" — identified by the SSEB before the discussion period commenced — the Air Force never raised the issue with Halcyon during discussions. The Air Force issued no Evaluation Notice, no discussion question, and no informal communication to Halcyon regarding the Meridian supply chain concentration. This is confirmed by the Contracting Officer's Statement of Facts (AR Tab 2 at 5-6) and the Discussion Record (AR Tab 19), which lists every discussion topic raised with each offeror during the discussion period. For Halcyon, the Discussion Record reflects only minor administrative clarifications — none relating to Supply Chain Risk Management.
The disparity is stark: Whitmore received two Evaluation Notices probing a weakness in a technical subfactor, while Halcyon received none addressing a documented "significant concern" in a management subfactor. This unequal treatment directly affected the competitive posture of both offerors in the source selection.
2. The Agency's Justification for Not Raising Supply Chain Concerns with Halcyon Is Unpersuasive
The Supplemental AR advances a single justification for the disparity: that the SSEB's characterization of the Meridian supply chain concentration as a "significant concern" was merely an "observation" or "note" that did not rise to the level of a "weakness" or "deficiency" requiring discussion under FAR 15.306(d). Supplemental AR at 11-12. The Agency argues that the Contracting Officer, Colonel Prescott, properly exercised her discretion in determining the scope and content of discussions and concluded that only matters rising to the level of identified "weaknesses" or "deficiencies" warranted Evaluation Notices. Id. at 12.
This argument is contradicted by the plain language of the SSEB's own evaluation notes. The SSEB did not use the word "observation" or "note" to describe the Meridian supply chain issue. It used the specific term "significant concern." AR Tab 22 at 3. In the context of FAR Part 15 evaluations and discussions, the term "significant concern" carries particular weight. Under the solicitation's evaluation methodology, a finding characterized by the SSEB as a "significant concern" is not a mere passing observation; it is a substantive evaluative judgment that bears directly on the offeror's assessed risk and merits. The fact that the SSEB assigned Halcyon an "Acceptable" rating under Supply Chain Risk Management — the lowest rating in the competitive range for that subfactor — further confirms that the Meridian issue was not a trivial matter but one that materially affected the SSEB's assessment.
The Agency's attempt to draw a formalistic distinction between a "significant concern" and a "weakness" is inconsistent with the requirement to conduct meaningful discussions that lead each offeror into the competitive range and allow offerors to address areas of concern in the evaluation. See FAR 15.306(d)(3) ("At a minimum, the contracting officer must . . . indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond."). While this provision establishes a floor — requiring discussion of at minimum deficiencies, significant weaknesses, and adverse past performance — it does not authorize the agency to conduct discussions on weaknesses and concerns with one offeror while ignoring similar or greater concerns with another. Such selective treatment runs afoul of the fundamental principle that discussions must be fair and not favor one offeror over another. See Federal Acquisition Streamlining Act of 1994, Pub. L. No. 103-355, § 1014(a); see also Ashbury Partners LLC, B-409651, B-409651.2, July 9, 2014, 2014 CPD ¶ 207 at 11.
By comparison, the two Evaluation Notices issued to Whitmore addressed matters that the SSEB characterized in similar terms in its evaluation notes for Whitmore's proposal. AR Tab 15, the SSEB evaluation notes for Whitmore's Manufacturing Readiness subfactor, identifies "concerns" regarding Whitmore's production scale-up timeline and the maturity of its advanced ceramics coating process. AR Tab 16 contains additional evaluator commentary describing these issues as factors that "could affect" production readiness milestones. The language used to describe these concerns is comparable in severity to the language used to describe Halcyon's Meridian supply chain issue — yet the Whitmore concerns were raised as discussion items through formal Evaluation Notices, while the Halcyon concern was not. The Agency has offered no principled explanation for this disparity.
3. The Intervenor's Arguments Regarding Discussions Are Meritless
Halcyon's Intervenor's Comments advance three arguments in defense of the Air Force's discussion conduct, none of which withstands scrutiny.
First, Halcyon argues that the Air Force had "no obligation to raise every concern with every offeror" and that "the scope and depth of discussions are committed to the broad discretion of the Contracting Officer." Intervenor's Comments at 14. This is a correct statement of general principle, but it does not answer Whitmore's specific challenge. Whitmore does not argue that the Air Force was required to raise every concern with every offeror. Whitmore argues that the Air Force was required to conduct discussions that were not materially unequal — that is, discussions that did not systematically probe one offeror's weaknesses while leaving a comparable or greater weakness of the competing offeror entirely unaddressed. The Contracting Officer's discretion in framing discussions, while broad, does not extend to the kind of selective and disparate treatment documented in this record. See Quendix Labs., Inc., B-311123, Apr. 29, 2008, 2009 CPD ¶ 96 at 7 (sustaining protest where agency conducted materially unequal discussions by raising weaknesses with one offeror but not comparable weaknesses with another).
Second, Halcyon argues that Whitmore "lacks standing to complain about the content of discussions with a competitor" because Whitmore was not a party to the Air Force's discussions with Halcyon and has no right to dictate what topics the Air Force should have raised with another offeror. Intervenor's Comments at 15-16. This argument misapprehends the unequal discussions doctrine. A protester is prejudiced when it can demonstrate that the agency's disparate treatment gave the awardee an unfair competitive advantage or failed to allow the protester to compete on a level playing field. See Fenmore Holdings, B-403688, Dec. 6, 2010, 2010 CPD ¶ 292 at 5. Whitmore's standing to challenge unequal discussions is firmly established in GAO precedent. The protester need not have been a participant in the competitor's discussions; it need only demonstrate that the disparity in treatment affected the relative competitive standings of the offerors and caused prejudice. See Harborline Industries, B-293679, B-293679.2, May 27, 2004, 2004 CPD ¶ 115 at 9.
Third, Halcyon asserts that the two Evaluation Notices issued to Whitmore addressed matters of a "different nature and severity" than the Meridian supply chain issue identified in Halcyon's evaluation, and that the Agency's decision to raise the former but not the latter was a reasonable exercise of evaluative judgment. Intervenor's Comments at 16-17. Whitmore disagrees with this characterization. As discussed above, the SSEB's evaluation notes for both offerors use comparable language to describe the respective concerns. Moreover, the Meridian supply chain issue is arguably more severe than the Manufacturing Readiness concerns identified in Whitmore's evaluation, because the Meridian issue implicates supply continuity for a critical component from a sole foreign source — a risk with direct implications for the program's ability to sustain production in a contested environment, which is the very mission scenario the IRCM pod system is designed to address. The Air Force's decision to probe Whitmore's production scale-up concerns while ignoring Halcyon's sole-source foreign dependency is not merely a reasonable exercise of discretion; it is an inexplicable disparity that cannot be squared with the obligation to conduct fair and equal discussions.
4. Competitive Prejudice
Whitmore was competitively prejudiced by the materially unequal discussions. The prejudice analysis requires Whitmore to demonstrate a reasonable possibility that, but for the agency's improper conduct, the protester would have had a substantial chance of receiving the award. See Aldermere Industries, B-413120.3, Feb. 14, 2017, 2017 CPD ¶ 70 at 16. That standard is satisfied here.
Had the Air Force raised the Meridian Semiconductor GmbH sole-source dependency with Halcyon during the discussion period, Halcyon would have been required to address the supply chain concentration risk in its final proposal revision. This could have occurred in several ways, each of which would have affected the competitive balance:
(a) Halcyon might have proposed mitigation measures — such as qualifying a domestic alternative supplier, establishing strategic inventory reserves, or restructuring its subcontracting arrangement — that would have increased its proposed cost, narrowing or eliminating its technical advantage;
(b) Halcyon might have failed to adequately address the concern, resulting in a lower rating under Supply Chain Risk Management, potentially dropping from "Acceptable" to "Marginal," which would have altered the tradeoff calculus;
(c) Alternatively, Halcyon might have successfully addressed the concern and improved its rating, but this would have occurred on a level playing field where both offerors had the opportunity to respond to their respective evaluation concerns.
Conversely, the discussions that were conducted with Whitmore — EN-WAL-001 and EN-WAL-002 — resulted in Whitmore's Manufacturing Readiness rating remaining at "Acceptable" despite Whitmore's efforts to address the identified concerns in its final proposal revision. If the SSEB had not raised the Manufacturing Readiness concerns with Whitmore through formal Evaluation Notices, or had raised comparable issues with Halcyon on Supply Chain Risk Management, the discussion process would have been more balanced, and the resulting evaluation ratings might have been different.
The combination of the unequal discussions with the deficient tradeoff rationale compounds the prejudice. The SSA's tradeoff decision relied heavily — indeed, almost exclusively — on the ratings differential between Halcyon's "Outstanding" and Whitmore's "Acceptable" under Manufacturing Readiness. That ratings differential was itself the product of a flawed discussion process in which Whitmore's weaknesses were probed while Halcyon's were not. The SSA's reliance on a ratings landscape that was shaped by unequal discussions renders the entire award decision suspect. See Tarrant Corporation, B-412278.7, B-412278.8, Oct. 4, 2017, 2017 CPD ¶ 312 at 15-16 (noting that unequal discussions may undermine the reliability of the evaluation ratings upon which the tradeoff was based).
Ground 2 should be sustained.
C. Ground 3: Organizational Conflict of Interest
1. Response to the Supplemental Agency Report's OCI Arguments
The Supplemental Agency Report provides additional detail on the organizational conflict of interest ("OCI") mitigation plan implemented by the Air Force regarding Halcyon Analytical Services LLC's ("HAS") prior performance of the Analysis of Alternatives ("AoA") study under Contract No. FA8222-21-C-0018, a $2.3 million contract awarded in September 2021. HAS is a wholly owned subsidiary of Halcyon Defense Systems Inc., the awardee in this procurement.
As Whitmore set forth in its initial protest and its November 17, 2023, Comments, the AoA study performed by HAS involved a comprehensive analysis of infrared countermeasure technology alternatives for the Air Force's next-generation IRCM pod program — the very program that is the subject of Solicitation FA8222-23-R-0087. Through the AoA, HAS personnel had access to non-public government information regarding threat assessments, system performance requirements, technology readiness assessments, and cost and schedule benchmarks that were developed specifically for this program. This information could have conferred a significant competitive advantage on Halcyon's proposing division in preparing its proposal under the solicitation.
The Air Force contends in its Supplemental AR that the OCI mitigation plan — developed by the Contracting Officer, Colonel Prescott, in consultation with Air Force legal counsel — was sufficient to prevent unequal access to non-public information. The mitigation plan allegedly included: (i) a corporate firewall between HAS personnel who worked on the AoA study and Halcyon's Sensor Solutions Division, which was responsible for preparing the proposal; (ii) physical separation of the HAS AoA team and the Sensor Solutions Division proposal team in different facilities; (iii) non-disclosure agreements executed by HAS personnel; and (iv) a certification by Greta M. Holloway, Vice President and Division Director of Halcyon's Sensor Solutions Division, that no AoA information was shared with the proposal team. Supplemental AR at 16-18.
Whitmore maintains that the mitigation plan was inadequate for the reasons stated in its November 17, 2023, Comments, including: (i) the firewall was implemented after HAS had already completed the AoA study and HAS personnel had already possessed the competitively sensitive information; (ii) the physical separation was limited — HAS and the Sensor Solutions Division share the same corporate campus in Huntsville, Alabama, and share certain common support functions including IT infrastructure and human resources; (iii) the non-disclosure agreements were executed only after the solicitation was issued, not at the commencement of the AoA contract; and (iv) Ms. Holloway's certification is a self-serving declaration that has not been tested through cross-examination or supported by contemporaneous documentation such as email logs, building access records, or IT audit trails.
Whitmore will present additional evidence at the scheduled hearing on January 4, 2024, through the testimony of Donald R. Stokes, Whitmore's Vice President for Strategic Programs, who will testify regarding the competitive significance of AoA-derived information and the inadequacy of the mitigation measures. Whitmore also intends to conduct cross-examination of Greta M. Holloway and Colonel Diane W. Prescott regarding the development, implementation, and verification of the mitigation plan.
2. Response to the Intervenor's OCI Arguments
Halcyon's Intervenor's Comments advance two principal arguments on the OCI ground, neither of which is persuasive.
First, Halcyon asserts that the AoA study addressed "broad capability assessments and technology surveys" that were "general in nature" and did not address "the specific technical requirements set forth in the solicitation." Intervenor's Comments at 20. Halcyon contends that the AoA could not have provided competitively useful non-public information because the solicitation's technical requirements were developed after the AoA was completed and differed materially from the alternatives analyzed in the AoA.
Whitmore disagrees with this characterization of the AoA's scope and content. The factual question of whether the AoA provided access to competitively useful non-public information — including threat characterization data, government cost estimates, technology maturation assessments, and performance requirements that informed the solicitation — is a genuine dispute that cannot be resolved on the papers alone. Whitmore will address this factual dispute at the January 4, 2024, hearing through witness testimony and documentary evidence.
Second, Halcyon argues that its corporate firewall between HAS and the proposing division was "verified by the Contracting Officer" and that Whitmore has offered no evidence that the firewall was breached. Intervenor's Comments at 21-22. Whitmore notes that the adequacy of the Contracting Officer's verification is itself at issue. Colonel Prescott's memorandum documenting her verification of the firewall (AR Tab 31) is a two-page document that states, in conclusory terms, that she "reviewed the mitigation plan and determined that it was adequate." AR Tab 31 at 1. The memorandum does not describe what steps Colonel Prescott took to verify the effectiveness of the firewall, does not reference any independent investigation or audit, does not address the shared IT infrastructure and common support functions between HAS and the Sensor Solutions Division, and does not attach or reference any supporting documentation. A conclusory determination of adequacy, unsupported by evidence of meaningful verification, does not satisfy the Contracting Officer's obligation to ensure that OCI mitigation measures are "reasonably adequate." See Axiom Res. Mgmt., Inc., B-298870.4, Mar. 22, 2007, 2007 CPD ¶ 60 at 6.
Whitmore preserves Ground 3 in its entirety and reserves its arguments for the pre-hearing brief (due December 21, 2023) and post-hearing brief, consistent with the GAO scheduling order.
D. Ground 4: Failure to Evaluate Realism of Halcyon's CLIN 0002 Labor Rates
1. Response to the Supplemental Agency Report
The Supplemental Agency Report argues that the solicitation's Section M criteria did not require a labor rate realism analysis for CLIN 0002 (Engineering Support Services, firm-fixed-price per labor hour) because the contract type for CLIN 0002 is firm-fixed-price ("FFP"). The Agency contends that realism analysis is generally required only for cost-reimbursement or labor-hour contract types, and that the FFP pricing structure for CLIN 0002 places the risk of understated labor rates on the contractor, not the government. Supplemental AR at 20-21.
Whitmore maintains that this argument fails because the solicitation's own language — not the general principles governing cost realism — controls. Section M, Factor 4, of the solicitation states that proposals will be evaluated for "reasonableness and realism." AR Tab 5 at M-4. This evaluation criterion applies to all proposed prices, not only to cost-reimbursement CLINs. The solicitation does not carve out FFP CLINs from the realism evaluation requirement. Where a solicitation expressly provides for realism evaluation, the agency must perform that evaluation consistent with the solicitation's stated methodology, regardless of contract type. See Emergint Techs., Inc., B-407006, Oct. 18, 2012, 2012 CPD ¶ 295 at 7 (holding that where a solicitation provides for realism analysis, the agency must conduct one, even for FFP line items).
The Contracting Officer's Statement of Facts (AR Tab 2) acknowledges that the price evaluation team conducted a reasonableness analysis of Halcyon's overall evaluated price, comparing it to the Independent Government Cost Estimate ("IGCE") and to Whitmore's price. AR Tab 2 at 8. However, the Statement of Facts does not address whether individual CLIN labor rates — specifically, Halcyon's proposed labor rates under CLIN 0002 — were evaluated for realism as required by the solicitation. The absence of any documented realism evaluation of Halcyon's CLIN 0002 labor rates suggests that the evaluation team either did not perform the required analysis or performed it but failed to document the results, either of which constitutes a violation of the solicitation's stated evaluation methodology.
The significance of this issue extends beyond the narrow question of labor rate evaluation. If Halcyon's CLIN 0002 labor rates were unrealistically low, they may indicate performance risk — i.e., the risk that Halcyon will be unable to attract and retain qualified engineering personnel at the proposed rates, leading to staffing shortfalls, quality issues, or requests for equitable adjustment. Such performance risk should have been considered in the context of the overall best-value tradeoff analysis. An agency's failure to evaluate stated realism criteria can undermine the reliability of the reasonableness determination as well, as unrealistically low labor rates on one CLIN may mask cross-subsidization or other pricing strategies that affect the overall integrity of the evaluated price. See Ctr. for Naval Analyses, B-409672, July 18, 2014, 2014 CPD ¶ 217 at 6.
2. Response to the Intervenor's Arguments
Halcyon's Intervenor's Comments argue that CLIN 0002, Engineering Support Services, "constitutes a small portion of the overall contract value" and that "any alleged realism issue is immaterial to the source selection outcome." Intervenor's Comments at 24. Halcyon further contends that Whitmore has not identified any specific labor rates that it alleges are unrealistic, and that the protest ground is therefore speculative.
Whitmore notes that the Supplemental Agency Report does not provide the CLIN-level breakdown necessary to evaluate Halcyon's claim that CLIN 0002 is a "small portion" of the contract value. The protective-order materials provided to date include Halcyon's total evaluated price but do not include a detailed CLIN-by-CLIN comparison. Without this information, neither Whitmore nor GAO can assess the materiality of CLIN 0002 to the overall source selection. The burden of demonstrating that the evaluation was conducted in accordance with the solicitation's stated criteria rests with the Agency, not the protester, and the Agency has not met that burden with respect to CLIN 0002 labor rate realism.
Whitmore preserves Ground 4 in its entirety. However, Whitmore acknowledges that if GAO sustains the protest on Grounds 1 and 2, the corrective action encompassing reevaluation of proposals and a new best-value tradeoff analysis may render this ground academic, as the reevaluation would presumably include a proper realism analysis of all proposed prices in accordance with the solicitation's stated evaluation criteria.
V. CORRECTIVE ACTION REQUEST
For all of the foregoing reasons, and for the reasons set forth in Whitmore's initial protest (filed September 26, 2023) and Comments on the Agency Report (filed November 17, 2023), Whitmore respectfully requests that GAO sustain the protest and recommend the following corrective action:
1. Reevaluation of Proposals. The Air Force should be directed to reevaluate proposals under Factor 1 (Technical Approach) and Factor 3 (Management Approach) consistent with GAO's decision and the solicitation's stated evaluation methodology. The reevaluation should include a proper assessment of all identified strengths, weaknesses, and concerns for both offerors, conducted on a level playing field and free from the disparities that infected the original evaluation.
2. New Best-Value Tradeoff Analysis. The Air Force should be directed to conduct a new best-value tradeoff analysis with a documented rationale that identifies specific technical discriminators justifying any price premium, as required by FAR 15.308. The tradeoff analysis should consider all evaluation factors and subfactors, including areas where Whitmore holds evaluated advantages, and should provide a reasoned explanation for why any technical advantages of the selected proposal warrant the additional cost to the government.
3. Termination of Halcyon's Contract. If, upon reevaluation, Whitmore's proposal is determined to represent the best value to the government and Whitmore is selected for award, the Air Force should terminate Halcyon's contract (Contract No. FA8222-23-D-0193) for the convenience of the government, pursuant to the termination provisions of the contract and applicable regulations.
4. Reimbursement of Protest Costs. The Air Force should reimburse Whitmore for the costs of filing and pursuing this protest, including reasonable attorneys' fees and consultant costs, pursuant to 4 C.F.R. § 21.8(d)(1). Whitmore has incurred substantial costs in prosecuting this protest, including the costs of retaining counsel, engaging technical consultants, and preparing for the January 4, 2024, hearing. These costs were necessitated by the Air Force's unreasonable conduct of the source selection and would not have been incurred but for the deficiencies in the evaluation and award process documented herein.
VI. CONCLUSION
The Air Force's Supplemental Agency Report and Halcyon Defense Systems Inc.'s Intervenor's Comments fail to address the fundamental deficiencies in the source selection process that Whitmore has identified in its protest filings.
The SSDD's best-value tradeoff analysis remains unexplained and undocumented, in violation of FAR 15.308. The SSA elected to pay a $17.4 million premium for Halcyon's proposal without identifying any specific technical benefits, mission-enhancing features, or discriminating characteristics of Halcyon's proposal that justified this additional expenditure. The Supplemental AR's attempt to backfill the record with post hoc rationalizations does not cure the deficiency in the contemporaneous source selection documentation. Adjectival rating labels do not substitute for substantive analysis, and the SSDD's perfunctory reference to Halcyon's Manufacturing Readiness rating does not constitute the reasoned tradeoff analysis that FAR 15.308 requires.
The discussions conducted during the August 2023 discussion period were materially unequal. The Air Force selectively issued two Evaluation Notices to Whitmore probing concerns in its Manufacturing Readiness subfactor, while ignoring a documented "significant concern" identified by the SSEB itself regarding Halcyon's sole-source dependency on Meridian Semiconductor GmbH, a foreign supplier of critical gallium arsenide sensor wafers. The Agency's attempt to characterize this documented concern as a mere "observation" is contradicted by the SSEB's own evaluation notes and is inconsistent with the obligation to conduct fair discussions. The disparate treatment directly affected the evaluation ratings upon which the SSA's flawed tradeoff was based, compounding the prejudice to Whitmore.
Neither the Agency nor the Intervenor has demonstrated that the source selection was conducted in a reasonable manner consistent with the solicitation's stated evaluation methodology, the requirements of FAR Part 15, and applicable GAO precedent. The protest should be sustained, and the Air Force should be directed to implement corrective action as set forth in Section V above.
\ \ \*
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Claudia Merritt Responsible Partner
Lt. Col. (Ret.) Nathan Yardley Of Counsel
Megan Zhao Senior Associate
Alan Burke Associate
Sara Hendricks Associate
1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-4200 Facsimile: (202) 555-4201
Counsel for Protester, Whitmore Aerospace LLC
Dated: December 4, 2023
CERTIFICATE OF SERVICE
I, Megan Zhao, Senior Associate at Calderwood & Harkness LLP, hereby certify that on this 4th day of December 2023, a true and correct copy of the foregoing Protester's Supplemental Comments on the Supplemental Agency Report and Intervenor's Comments was served upon the following counsel of record via electronic filing through the GAO Electronic Protest Docketing System ("EPDS") and by electronic mail:
Agency Counsel:
Capt. Lucas M. Hargrove, USAF, JAG Office of the Judge Advocate General Department of the Air Force
Miriam T. Castellano Office of the General Counsel, SAF/GCQ Department of the Air Force 1740 Air Force Pentagon Washington, D.C. 20330
Intervenor's Counsel:
Theodore J. Dunaway, Lead Partner Rachel N. Sorensen, Associate Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102
________________________________________
Megan Zhao Senior Associate Calderwood & Harkness LLP
Dated: December 4, 2023
CERTIFICATE OF COMPLIANCE WITH PROTECTIVE ORDER
I, Claudia Merritt, Responsible Partner at Calderwood & Harkness LLP and counsel of record for Protester Whitmore Aerospace LLC, hereby certify the following:
1. These Supplemental Comments have been reviewed for compliance with the Protective Order issued by the Government Accountability Office on October 12, 2023, in Case Nos. B-422187 and B-422187.2.
2. No protected information, as defined by the Protective Order, has been disclosed in this non-protected version of the filing. All references to source-selection-sensitive and proprietary information have been limited to information that is already part of the public record, information that has been declassified or designated as non-protected by the parties, or general descriptions that do not reveal the substance of protected materials.
3. A separate protected version of these Supplemental Comments, marked in accordance with the procedures set forth in the Protective Order (including the designation of protected material in brackets and highlighted text as required by Paragraph 6 of the Protective Order), has been filed under seal with the Government Accountability Office and served only upon counsel who have been admitted under the Protective Order.
4. All counsel and support staff at Calderwood & Harkness LLP who had access to protected materials in connection with the preparation of these Supplemental Comments have executed the requisite acknowledgments and are in compliance with the terms of the Protective Order.
________________________________________
Claudia Merritt Responsible Partner Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006
Counsel for Protester, Whitmore Aerospace LLC
Dated: December 4, 2023
WHITMORE AEROSPACE LLC,
2400 Dominion Ridge Parkway, Suite 800
Herndon, Virginia 20171,
Solicitation No. FA8222-23-R-0087
Protester,
Contract No. FA8222-23-D-0193
v.
U.S. DEPARTMENT OF THE AIR FORCE,
Air Force Life Cycle Management Center
(AFLCMC), Sensors Directorate,
Wright-Patterson Air Force Base, Ohio 45433,
Agency,
HALCYON DEFENSE SYSTEMS INC.,
15700 Northrop Boulevard
Huntsville, Alabama 35806,
Awardee/Intervenor.
| Evaluation Factor | Whitmore | Halcyon |
| Factor 1: Technical Approach (Overall) | Good | Outstanding |
| — Subfactor 1(a): System Design & Integration | Outstanding | Outstanding |
| — Subfactor 1(b): Manufacturing Readiness | Acceptable | Outstanding |
| — Subfactor 1(c): Test & Evaluation Plan | Good | Good |
| Factor 2: Past Performance | Substantial Confidence | Substantial Confidence |
| Factor 3: Management Approach (Overall) | Good | Good |
| — Subfactor 3(a): Program Management | Good | Good |
| — Subfactor 3(b): Supply Chain Risk Management | Good | Acceptable |
| — Subfactor 3(c): ITAR/Export Compliance | Outstanding | Good |
| Factor 4: Price (Evaluated Total Price) | $343,800,000 | $361,200,000 |