CALDERWOOD & HARKNESS LLP Attorneys at Law 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-4100 Facsimile: (202) 555-4101
November 20, 2023
Via Email and Overnight Delivery
Theodore "Ted" J. Dunaway, Esq. Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102
Re: GAO Case No. B-422187; B-422187.2 Whitmore Aerospace LLC — Protest of Award under Solicitation No. FA8222-23-R-0087 Contract No. FA8222-23-D-0193 Protective Order Compliance Concerns
Dear Mr. Dunaway:
I. Purpose and Introduction
This firm represents Whitmore Aerospace LLC (the "Protester") in the above-referenced bid protest proceedings currently pending before the U.S. Government Accountability Office ("GAO"). We write to bring to your attention a number of serious concerns regarding potential inadvertent — and possibly impermissible — disclosure of information protected under the Protective Order issued by GAO in this matter.
As you are aware, the Protective Order in this proceeding was issued on October 12, 2023, pursuant to 4 C.F.R. § 21.4, and governs access to, and the handling and use of, proprietary and source selection sensitive information contained in the Agency Report filed by the Department of the Air Force. The Protective Order imposes strict obligations on all admitted counsel with respect to the treatment of protected material, and violations of those obligations carry significant consequences, both for the integrity of the proceeding and for the admitted counsel involved.
Our concerns arise from Calderwood & Harkness's review of a draft of Halcyon Defense Systems Inc.'s ("Halcyon" or "Intervenor") Intervenor's Comments, which we understand are expected to be filed on or about November 22, 2023. As detailed below, our review of the draft — conducted in the course of the pre-filing protective order review procedures — has identified several instances in which protected material appears to be referenced in a manner that raises substantial compliance questions under the Protective Order.
We raise these concerns now, in advance of the filing deadline, in the hope that they can be addressed promptly and cooperatively, and that formal motion practice before GAO can be avoided. We do, however, take these matters seriously and, as set forth below, reserve all rights in the event adequate corrective measures are not taken.
II. Background — Protective Order Procedures
The Protective Order in this proceeding governs the handling, use, and disclosure of all information designated as protected material, including source selection sensitive information, proprietary data of the offerors, and evaluation documentation contained in the Agency Report ("AR"), which was filed in both protected and redacted form and consists of AR Tabs 1 through 47. The Protective Order was entered to ensure that competitive, proprietary, and source selection sensitive information exchanged and reviewed in the course of this protest would not be disclosed to any individual or entity not authorized to receive such material, and to safeguard the integrity of the procurement process.
Under the terms of the Protective Order, access to protected material is restricted exclusively to admitted outside counsel of record. The Protective Order expressly prohibits disclosure of any protected material to client personnel, including officers, directors, employees, agents, consultants, or representatives of the parties' respective client organizations. With respect to the Intervenor, this prohibition extends to all employees and officers of Halcyon Defense Systems Inc., including but not limited to Raymond K. Osterhaus (Chief Executive Officer), Greta M. Holloway (Vice President, Business Development), and any other individual associated with Halcyon who has not been admitted under the Protective Order.
The admitted counsel for the Intervenor under the Protective Order are Theodore J. Dunaway and Rachel N. Sorensen of Kessler, Pratt & Dunaway LLP. No other individuals at Kessler, Pratt & Dunaway or elsewhere have been admitted on behalf of the Intervenor. On the Protester's side, admitted counsel under the Protective Order include the undersigned, Claudia Merritt, together with Lt. Col. (Ret.) Nathan Yardley and Megan Zhao, all of Calderwood & Harkness LLP, as well as technical advisor Janet K. Overmeyer of Ridgeline Consulting Group LLC, who was admitted by separate application granted by GAO on October 19, 2023.
The Protective Order further requires that any filing containing protected material must be filed in two versions: a protected version, which is made available only to admitted counsel and GAO, and a redacted public version, from which all protected material has been removed or obscured. Protected material in the protected version must be clearly marked — typically by placing it within brackets and designating it with the legend "PROTECTED MATERIAL" — so that the boundaries of such material are readily identifiable.
These procedures exist for a critical purpose. The unauthorized disclosure of source selection sensitive information or proprietary data in the public record could cause irreparable competitive harm to the affected party and would undermine the GAO's ability to adjudicate this protest fairly. It is against this backdrop that we detail our specific concerns below.
III. Specific Concerns Regarding the Intervenor's Draft Comments
In the course of the pre-filing protective order review procedures established in this case, counsel for the Protester reviewed a draft of Halcyon's Intervenor's Comments provided by your office. Upon careful review, we have identified at least three specific areas in which the draft raises significant concerns regarding compliance with the Protective Order. Each is discussed in turn.
A. Reference to Whitmore's Evaluated Pricing Detail
The draft Intervenor's Comments appear to contain specific references to Whitmore Aerospace LLC's evaluated total price of $343,800,000, as well as to the $17,400,000 price differential between the Protester's and Halcyon's evaluated prices — a differential of approximately 4.82 percent. These references appear in portions of the draft brief that are not designated as protected material, meaning they would appear in the public (redacted) version of the filing if the brief were filed in its current form.
We acknowledge that the general fact that a price differential existed between the two offerors may have been referenced, at a high level, in the post-award debriefing provided to Whitmore Aerospace and, subsequently, in the protest petition itself, which is a public filing. However, the specific evaluated pricing figures for the Protester — including the precise total evaluated price of $343,800,000 and the exact dollar amount and percentage of the price differential — constitute source selection sensitive information. This information is contained in the Source Selection Decision Document ("SSDD") and in the competitive range and price evaluation documentation included in the Agency Report and is protected under the Protective Order.
There is a meaningful distinction between the general reference to a price differential in the debriefing context and the disclosure of specific evaluated pricing data derived from the Agency Report's protected evaluation record. The former may be appropriate for inclusion in unredacted filings; the latter is not. The specificity of the figures cited in the draft — down to the precise dollar amount and corresponding percentage — strongly suggests derivation from the protected materials contained in the Agency Report rather than from any publicly available source.
Accordingly, we request that these specific pricing references be properly redacted from the public version of the Intervenor's Comments before filing. In the alternative, if Kessler, Pratt & Dunaway takes the position that these figures are derived exclusively from the public record, we ask that your firm provide a written identification of the specific public source or sources from which the figures were obtained, so that we may evaluate that representation independently.
B. Discussion of SSEB Evaluation Notes (AR Tabs 22 and 28)
The draft Intervenor's Comments also contain what appears to be a paraphrase — and in at least one instance, a near-verbatim quotation — of language from the Source Selection Evaluation Board ("SSEB") evaluation notes contained in AR Tabs 22 and 28. Specifically, the draft references the SSEB's notation of a "significant concern" regarding Halcyon's Supply Chain Risk Management subfactor evaluation, including a detailed discussion of the evaluators' identification of Halcyon's sole-source reliance on Meridian Semiconductor GmbH, headquartered in Dresden, Germany, for the supply of gallium arsenide sensor wafers used in the infrared countermeasure system's core sensor assembly.
As you are aware, AR Tabs 22 and 28 were produced in unredacted form to admitted counsel pursuant to GAO's order of November 9, 2023, following the agency's initial over-redaction of those documents. The content of AR Tabs 22 and 28, including the SSEB evaluators' internal assessment notations, consensus ratings, and narrative commentary, constitutes protected material subject to the restrictions of the Protective Order.
Our review of the draft indicates that the references to SSEB evaluation note content are not clearly marked as protected material. If the Intervenor's Comments were filed in the current form, these references would appear in the public version of the filing, resulting in the inadvertent disclosure of protected evaluation information into the public record. We urge your firm to review these passages carefully and to ensure that all references to, quotations from, or paraphrases of the content of AR Tabs 22 and 28 are properly designated as protected and redacted from the public version of the filing.
We also feel compelled to note an additional concern arising from the level of detail with which the SSEB evaluation notes are discussed in the draft Intervenor's Comments. The draft contains a nuanced, technically specific discussion of the evaluators' supply chain risk assessment, including references to the nature of the sole-source dependency, the identity of the foreign supplier, and the specific component at issue. The depth and specificity of this discussion raises a legitimate question as to whether the substance of AR Tabs 22 and 28 may have been shared with, or discussed in substance with, client personnel at Halcyon Defense Systems Inc. in a manner inconsistent with the Protective Order's restrictions on disclosure to non-admitted individuals.
We recognize that admitted counsel may, in the ordinary course, possess independent knowledge of their client's own proposal and supply chain arrangements. However, the evaluation notes reflect the government's assessment of those arrangements — not the offeror's own characterization — and the particular framing and language used in the draft closely tracks the SSEB's evaluation narrative rather than any publicly available description of Halcyon's supply chain. We raise this concern not to make an accusation but to seek appropriate assurances, as detailed in Section IV below, that the Protective Order's restrictions on access have been scrupulously observed.
C. Reference to Whitmore's Subcontractor Information
Finally, the draft Intervenor's Comments appear to reference specific details about Pinnacle Precision Manufacturing Inc., Whitmore Aerospace LLC's key subcontractor, including its role in the manufacturing of machined housings and gimbal assemblies for the Protester's IRCM pod design. The draft references Pinnacle's location at 6220 Industrial Parkway, Beavercreek, Ohio 45431, and describes the nature of the components manufactured by Pinnacle with a level of specificity that goes well beyond any information available in the public record.
To the extent that the details regarding Pinnacle Precision Manufacturing Inc. and its role as Whitmore's subcontractor were contained in Whitmore's proposal volumes — including its Technical Volume, Management Volume, and associated annexes — and reflected in the Agency Report's evaluation documentation, this subcontractor information constitutes proprietary information belonging to Whitmore Aerospace LLC. Such information is protected under the Protective Order, and its inclusion in any public filing would cause competitive harm to the Protester by revealing details of its manufacturing arrangements and supply chain architecture.
The specificity of the references in the draft — including the physical address of the subcontractor's facility and the identification of the particular components (machined housings and gimbal assemblies) manufactured by Pinnacle — strongly suggests derivation from protected proposal documents contained in the Agency Report rather than from publicly available information. We are not aware of any public source from which this combination of details could have been obtained, and we note that Pinnacle Precision Manufacturing Inc. does not publicly advertise its relationship with Whitmore Aerospace or the specific components it manufactures under the relevant contract vehicle.
Accordingly, we request that all references to Whitmore's subcontractor information, including the identity, location, and manufacturing role of Pinnacle Precision Manufacturing Inc., be removed from the public version of the Intervenor's Comments or, at minimum, be properly designated as protected material and redacted from the public filing.
IV. Requested Actions
In light of the concerns set forth above, we respectfully request that Kessler, Pratt & Dunaway LLP take the following steps before the Intervenor's Comments are filed with GAO.
A. Review and Remediation
We request that your firm conduct a thorough and comprehensive review of the Intervenor's Comments — both the protected and public versions — to ensure that all protected material is properly identified and marked in accordance with the requirements of the Protective Order. Specifically, we request that you ensure the public (redacted) version of the filing does not contain any protected material, including but not limited to:
(i) Whitmore Aerospace LLC's specific evaluated pricing data, including the total evaluated price of $343,800,000 and the $17,400,000 price differential;
(ii) any quotation, paraphrase, or substantive reference to the content of the SSEB evaluation notes contained in AR Tabs 22, AR Tab 28, or any other protected Agency Report tab; and
(iii) Whitmore Aerospace LLC's proprietary subcontractor and technical proposal information, including the identity, location, role, and component-specific manufacturing details of Pinnacle Precision Manufacturing Inc. or any other Whitmore subcontractor identified in the protected proposal volumes.
We also request that your firm review the draft in its entirety for any additional instances of protected material that may appear in undesignated form, beyond the specific examples identified in this letter.
B. Written Confirmation of Compliance
We further request that Kessler, Pratt & Dunaway LLP provide written confirmation to Calderwood & Harkness LLP, with a copy to GAO Senior Attorney Angela M. Palermino of the Procurement Law Division, confirming the following:
(i) That no protected material obtained through the Agency Report or otherwise produced under the Protective Order has been disclosed, directly or indirectly, in whole or in substance, to any personnel of Halcyon Defense Systems Inc., including but not limited to Raymond K. Osterhaus, Greta M. Holloway, or any other officers, directors, employees, agents, consultants, or representatives of Halcyon Defense Systems Inc.;
(ii) That all persons who have had access to protected material in this proceeding are limited exclusively to those individuals admitted under the Protective Order — specifically, Theodore J. Dunaway and Rachel N. Sorensen of Kessler, Pratt & Dunaway LLP — and that no other individual has been provided access to, or received any disclosure of, protected material; and
(iii) That the Intervenor's Comments, as ultimately filed with GAO, will comply in all respects with the terms and conditions of the Protective Order, including the proper designation and redaction of all protected material.
C. Timeline for Response
We request that the written confirmation described above be provided no later than November 21, 2023 — one calendar day before the anticipated filing date of November 22, 2023. Given the immediacy of the filing deadline, we believe this timeline is both reasonable and necessary to allow the Protester to evaluate whether additional steps are required before the Intervenor's Comments are placed on the record.
We wish to be direct about the consequences of inaction. If the requested written confirmation is not received by the date specified, or if the concerns identified in this letter are not adequately addressed to our satisfaction, Calderwood & Harkness LLP will have no choice but to bring this matter to the immediate attention of GAO and to request appropriate relief. Such relief may include, without limitation, a formal motion for sanctions for Protective Order violations pursuant to 4 C.F.R. § 21.4, a request that GAO strike the non-compliant portions of the Intervenor's Comments, and a request for such other remedies as GAO deems appropriate under the circumstances, including referral to the applicable bar disciplinary authorities.
We sincerely hope that this course of action will not be necessary, and we remain confident that these issues can be resolved through prompt and good-faith engagement between counsel.
V. Reservation of Rights
Whitmore Aerospace LLC reserves all rights and remedies available to it under the Protective Order, 4 C.F.R. Part 21, and any other applicable law, regulation, or rule of professional conduct. Nothing in this letter shall be construed as a waiver of any right, claim, or argument that Whitmore Aerospace or its counsel may assert in connection with the matters described herein or in connection with any other aspect of this proceeding.
This letter is not intended to be an exhaustive identification of all potential issues with the draft Intervenor's Comments. Our review of the draft was necessarily conducted under time constraints imposed by the filing schedule, and additional concerns may be identified and raised upon review of the final version of the Intervenor's Comments as filed with GAO. We expressly reserve the right to raise any such additional concerns at the appropriate time.
Calderwood & Harkness trusts that these concerns can be resolved cooperatively, expeditiously, and without the need for formal motion practice before GAO. We take our obligations under the Protective Order seriously, and we are confident that your firm does as well. We look forward to receiving your prompt response.
A copy of this letter is being provided to the following individuals:
Angela M. Palermino, Senior Attorney, Procurement Law Division, U.S. Government Accountability Office;
Capt. Lucas M. Hargrove, USAF, JAG, Trial Attorney, Office of the General Counsel, Department of the Air Force (agency counsel); and
Miriam T. Castellano, Senior Attorney, SAF/GCQ.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Claudia Merritt Partner
1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-4100
Email: c.merritt@calderwoodharkness.com
On behalf of Whitmore Aerospace LLC
Enclosures: None
cc: Angela M. Palermino, Senior Attorney, Procurement Law Division, U.S. Government Accountability Office cc: Capt. Lucas M. Hargrove, USAF, JAG, Trial Attorney, Office of the General Counsel, Department of the Air Force cc: Miriam T. Castellano, Senior Attorney, SAF/GCQ