CALDERWOOD & HARKNESS LLP Attorneys at Law
1750 K Street NW, Suite 1100 Washington, D.C. 20006
Telephone: (202) 555-7400 Facsimile: (202) 555-7401
Email: cmerritt@calderwoodharkness.com
October 4, 2023
Kenneth R. Woodley Managing Associate General Counsel Procurement Law Division U.S. Government Accountability Office 441 G Street NW Washington, D.C. 20548
Re: Protest of Whitmore Aerospace LLC Case No. B-422187; B-422187.2 Solicitation No. FA8222-23-R-0087 Contracting Activity: Air Force Life Cycle Management Center (AFLCMC), Sensors Directorate, Wright-Patterson Air Force Base, Ohio 45433 Subject: Response to Intervenor's Notice of Intervention
Dear Mr. Woodley:
I. Purpose of This Letter
The law firm of Calderwood & Harkness LLP represents Whitmore Aerospace LLC ("Whitmore" or "Protester"), a Virginia limited liability company headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171, in the above-captioned protest proceeding. This representation is pursuant to Engagement No. 1019-00003. The undersigned, Claudia Merritt, is the responsible partner for this matter.
The purpose of this letter is to acknowledge and respond to the Notice of Intervention filed on October 2, 2023, by Halcyon Defense Systems Inc. ("Halcyon" or "Intervenor"), the awardee under Contract No. FA8222-23-D-0193, issued pursuant to Solicitation No. FA8222-23-R-0087. The Notice of Intervention was filed through Halcyon's counsel of record, the law firm of Kessler, Pratt & Dunaway LLP, located at 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102, with Theodore "Ted" J. Dunaway serving as lead partner and Rachel N. Sorensen serving as associate counsel for the Intervenor in this proceeding. This letter sets forth Whitmore's position with respect to the scope and terms of Halcyon's participation as an intervenor in this protest, including matters related to the anticipated protective order and service of filings.
II. Acknowledgment of Intervention
Whitmore acknowledges that Halcyon timely filed its Notice of Intervention on October 2, 2023, which is consistent with the requirements of 4 C.F.R. § 21.0(b). Based on our review of the filing, the Notice of Intervention appears to comply with the procedural requirements governing intervention in bid protest proceedings before the Government Accountability Office.
Whitmore does not object to Halcyon's status as an interested party in this proceeding. Halcyon Defense Systems Inc. is a Delaware corporation headquartered at 15700 Northrop Boulevard, Huntsville, Alabama 35806, and is the awardee of the challenged indefinite-delivery/indefinite-quantity ("IDIQ") contract, Contract No. FA8222-23-D-0193, which was awarded under Solicitation No. FA8222-23-R-0087. The IDIQ contract carries a total ceiling value of $387,500,000 over a five-year ordering period. As the awardee of the contract whose award is being challenged, Halcyon plainly qualifies as an interested party with standing to intervene in this protest.
We note that Halcyon is represented in this proceeding by Kessler, Pratt & Dunaway LLP. Whitmore respectfully requests that all future correspondence and filings from the Intervenor be simultaneously served on Calderwood & Harkness LLP at the address set forth in the letterhead of this correspondence, directed to the attention of Claudia Merritt, Partner, and Lt. Col. (Ret.) Nathan Yardley, Of Counsel. We will, in turn, serve all of our filings on Intervenor's counsel at the address identified in the Notice of Intervention.
III. Background on the Protest
For the convenience of the record, and to provide context for the positions set forth below regarding the scope of the Intervenor's participation, Whitmore briefly recites the procedural history of this protest as follows.
Whitmore filed its protest on September 26, 2023, within the ten-day post-debriefing deadline prescribed by 4 C.F.R. § 21.2(a)(2). The protest was filed following the enhanced written debriefing conducted on September 22, 2023, pursuant to 10 U.S.C. § 3304, which was provided to Whitmore by the contracting activity at AFLCMC's Sensors Directorate. The debriefing addressed the evaluation of Whitmore's proposal and the basis for the best-value award determination in favor of Halcyon under Solicitation No. FA8222-23-R-0087.
The Government Accountability Office issued its notice of protest to the Department of the Air Force on September 27, 2023. Upon receipt of that notice, the Competition in Contracting Act ("CICA") automatic stay of contract performance took effect pursuant to 31 U.S.C. § 3553(c)(1). It is Whitmore's understanding that contract performance under Contract No. FA8222-23-D-0193 remains stayed as of the date of this letter.
We further note that the Air Force filed a notice regarding its consideration of potential corrective action on October 6, 2023. However, as of the date of this letter, no corrective action has been taken by the agency, and the protest remains pending on the merits.
The protest challenges the award to Halcyon on four independent grounds:
(1) Unreasonable Best-Value Tradeoff Analysis. The Source Selection Authority's best-value tradeoff analysis was unreasonable and inconsistent with the evaluation methodology set forth in the solicitation and the requirements of FAR 15.308, in that the SSA failed to adequately document or justify the basis for the tradeoff decision to award to a higher-priced, technically superior offeror without meaningful consideration of the price premium associated with the Halcyon proposal;
(2) Materially Unequal Discussions. The agency conducted materially unequal discussions during the discussion period of August 14 through August 25, 2023, in violation of FAR 15.306(d), by providing Halcyon with substantively more detailed and targeted discussion questions regarding its technical approach than were provided to Whitmore, thereby affording Halcyon an unfair competitive advantage in the final proposal revision process;
(3) Organizational Conflict of Interest. The agency failed to identify and mitigate an organizational conflict of interest involving Halcyon Analytical Services LLC, a wholly owned subsidiary of the Intervenor, which performed a prior Analysis of Alternatives ("AoA") study under Contract No. FA8222-21-C-0018 (valued at $2,300,000) that directly informed the requirements and evaluation criteria of Solicitation No. FA8222-23-R-0087, in violation of FAR Subpart 9.5; and
(4) Failure to Evaluate Cost Realism. The agency failed to perform a meaningful evaluation of the realism of Halcyon's proposed labor rates under Contract Line Item Number ("CLIN") 0002, as required by the solicitation's evaluation criteria and consistent with the requirements of FAR 15.404-1(d), resulting in the acceptance of unrealistically low labor rates that posed a significant performance risk.
Each of these protest grounds is fully briefed in the initial protest filing of September 26, 2023, and Whitmore anticipates supplementing its arguments, as appropriate, following receipt of the Agency Report.
IV. Protester's Position on Scope of Intervenor Participation
A. General Right of Participation
Whitmore recognizes that, as the awardee under the challenged contract, Halcyon has the right to participate as an intervenor in this protest proceeding. This right includes the ability to submit comments on the protest, to respond to the protest grounds raised by Whitmore, and to access non-protected portions of the protest record in accordance with GAO's procedures. Whitmore does not seek to limit the Intervenor's exercise of these established procedural rights, and anticipates that the Intervenor's participation will proceed in accordance with standard GAO practice.
B. Access to Protected Material and Anticipated Protective Order
Whitmore intends to file an application for a protective order governing access to proprietary and source selection sensitive information that is expected to be contained in the Agency Report and related filings in this proceeding. Whitmore anticipates filing this application on or about October 12, 2023, in advance of the anticipated due date for the Agency Report. The proposed protective order will be consistent with GAO's standard protective order procedures and will address the handling, use, and dissemination of all competitively sensitive evaluation materials, including source selection documentation, offeror proposals, evaluation worksheets, discussion records, and related materials.
Whitmore respectfully requests that the Intervenor's access to any protected material in this proceeding be strictly governed by the terms of the protective order to be issued by this Office. Specifically, Whitmore requests that access to protected materials be limited exclusively to the Intervenor's outside counsel of record who have been formally admitted under the protective order. In no event should Halcyon's in-house counsel, business personnel, or corporate employees receive access to competitively sensitive evaluation materials, including but not limited to Whitmore's proposal, evaluation ratings, cost or pricing data, or the agency's comparative evaluation assessments. Without limitation, this request specifically encompasses Greta M. Holloway, President of the Sensor Solutions Division at Halcyon Defense Systems Inc., and any other Halcyon employees who are involved in business development, proposal preparation, competitive strategy, or contract performance activities.
This limitation on access to protected materials is particularly important in this proceeding given the nature of Ground 3 of the protest, which alleges an organizational conflict of interest involving Halcyon Analytical Services LLC, a wholly owned subsidiary of the Intervenor. As set forth in the protest filing, Halcyon Analytical Services LLC performed a prior Analysis of Alternatives study under Contract No. FA8222-21-C-0018, valued at $2,300,000, that directly informed the requirements definition and evaluation framework for the solicitation at issue. Access to certain protest materials — particularly source selection documentation and the agency's evaluation of the organizational conflict of interest issue — by Halcyon's business personnel could exacerbate the competitive harm at issue and would be inconsistent with the purposes of the protective order. The risk that Halcyon's business personnel could obtain insight into the agency's evaluation methodology, Whitmore's competitive pricing strategy, or the agency's internal deliberations regarding the organizational conflict of interest necessitates a strict limitation on access to protected materials.
Whitmore reserves the right to raise specific objections to any protective order application or admissions sought by the Intervenor to the extent that such application proposes access for individuals whose participation would pose an unacceptable risk of competitive harm. Whitmore will address these issues in greater detail in its own protective order application and in any response to the Intervenor's protective order submissions.
C. Limitations on Scope of Intervenor's Submissions
While Whitmore does not object to Halcyon's participation as an intervenor, Whitmore respectfully reserves the right to object to any Intervenor submission that exceeds the proper scope of intervenor participation as established by GAO's bid protest procedures and applicable precedent. Specifically, Whitmore reserves the right to object to any attempt by the Intervenor to raise new protest issues or grounds not raised by the Protester, to supplement the Agency Record with materials not properly before this Office, or to submit evidence, declarations, or other materials that go beyond the scope of the administrative record compiled by the contracting agency. The role of the intervenor in GAO bid protest proceedings is to respond to the protest grounds raised by the protester and to present arguments in support of the agency's award decision — not to expand the scope of the protest or introduce new factual matters outside the administrative record.
Whitmore also reserves the right to file responses to any arguments raised by the Intervenor in its comments or other filings, to the extent permitted by GAO's procedural rules and any scheduling order issued in this proceeding.
D. Service of Filings
Whitmore requests that all filings by the Intervenor in this proceeding — including comments, responses, protective order applications, motions, and any other submissions — be simultaneously served on Calderwood & Harkness LLP at the following address:
Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006
Attn: Claudia Merritt, Partner
Lt. Col. (Ret.) Nathan Yardley, Of Counsel
Service may be effected by electronic mail to cmerritt@calderwoodharkness.com and nyardley@calderwoodharkness.com, consistent with GAO's procedural requirements. Whitmore's counsel will similarly serve all of its filings in this proceeding on Kessler, Pratt & Dunaway LLP at 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102, directed to the attention of Theodore J. Dunaway and Rachel N. Sorensen.
V. Identification of Protester's Counsel
For the record, the following attorneys of Calderwood & Harkness LLP serve as Protester's counsel of record for all purposes in Case Nos. B-422187 and B-422187.2:
Claudia Merritt, Partner (Responsible Partner) Lt. Col. (Ret.) Nathan Yardley, Of Counsel Megan Zhao, Senior Associate Alan Burke, Lead Associate Sara Hendricks, Working Associate
All counsel are located at Calderwood & Harkness LLP, 1750 K Street NW, Suite 1100, Washington, D.C. 20006. All communications regarding this protest should be directed to Claudia Merritt or Nathan Yardley at the contact information set forth above.
VI. Service of This Letter
A copy of this letter is being served simultaneously on the following parties by electronic mail and first-class mail:
Theodore J. Dunaway Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102 (Counsel for Intervenor Halcyon Defense Systems Inc.)
Captain Lucas M. Hargrove, USAF, JAG Trial Attorney Office of the General Counsel Department of the Air Force (Agency Counsel)
Miriam T. Castellano Senior Attorney, SAF/GCQ Department of the Air Force (Agency Counsel)
Colonel Diane W. Prescott, USAF Contracting Officer AFLCMC, Sensors Directorate Wright-Patterson Air Force Base, Ohio 45433 (Contracting Officer)
We appreciate the Government Accountability Office's attention to this matter and look forward to the orderly and efficient resolution of the issues presented in this protest. Should you have any questions regarding this letter or require any additional information, please do not hesitate to contact the undersigned.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Claudia Merritt Partner Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-7400 Facsimile: (202) 555-7401
Email: cmerritt@calderwoodharkness.com
Counsel for Protester Whitmore Aerospace LLC
Enclosures: None.
cc:
Theodore J. Dunaway, Kessler, Pratt & Dunaway LLP (Counsel for Intervenor) Capt. Lucas M. Hargrove, USAF, JAG (Agency Counsel) Miriam T. Castellano, Senior Attorney, SAF/GCQ (Agency Counsel) Donald R. Stokes, Vice President, Government Contracts, Whitmore Aerospace LLC (client copy) Marcus J. Whitmore, Chief Executive Officer, Whitmore Aerospace LLC (client copy)