letter-to-air-force-corrective-action.docx

1019-00003 · Whitmore Aerospace LLC · Decision and Corrective Action

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CALDERWOOD & HARKNESS LLP Attorneys at Law 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-7400 Facsimile: (202) 555-7401 www.calderwoodharkness.com

February 10, 2024

Captain Lucas M. Hargrove, USAF, JAG Trial Attorney, Office of the General Counsel Department of the Air Force Air Force Life Cycle Management Center, Sensors Directorate Wright-Patterson Air Force Base, Ohio 45433

Via Electronic Mail and First-Class Mail

cc: Miriam T. Castellano, Senior Attorney, SAF/GCQ (via electronic mail)

Re: Corrective Action Implementation — GAO Case No. B-422187; B-422187.2 Whitmore Aerospace LLC v. Department of the Air Force Solicitation No. FA8222-23-R-0087 / Contract No. FA8222-23-D-0193

Dear Captain Hargrove:

This firm represents Whitmore Aerospace LLC ("Whitmore" or "WAL") in the above-referenced matter (Engagement No. 1019-00003). We write in connection with the Department of the Air Force's February 5, 2024 notification to the Government Accountability Office ("GAO") indicating the agency's intent to implement corrective action in full, consistent with the decision issued on January 29, 2024, by Managing Associate General Counsel Kenneth R. Woodley in Whitmore Aerospace LLC, B-422187; B-422187.2 (Jan. 29, 2024). We acknowledge and appreciate the Air Force's timely notification.

The purpose of this letter is threefold: (1) to confirm Whitmore's understanding of the scope and substance of the corrective action required under the GAO's decision and recommendations; (2) to ensure mutual understanding of the obligations flowing from the GAO's findings of law and fact, so that the corrective action is implemented in a manner that fully addresses the procurement deficiencies identified; and (3) to place on the record certain process expectations and Whitmore's reservation of rights in the event the corrective action departs from the GAO's recommendations or otherwise fails to comply with applicable law.

We address each of these matters in turn below.

I. Summary of the GAO Decision and Recommended Corrective Action

On January 29, 2024, the GAO sustained Whitmore's protest on two of the four grounds raised. A brief recitation of the GAO's holdings is warranted to frame the discussion that follows.

Ground 1 — Unreasonable Best-Value Tradeoff Analysis (Sustained). The GAO found that the Source Selection Authority ("SSA"), Brigadier General Harlan T. Jeffcoat, USAF, conducted an unreasonable best-value tradeoff analysis in violation of Federal Acquisition Regulation ("FAR") § 15.308. Specifically, the GAO concluded that the Source Selection Decision Document ("SSDD") merely restated the adjectival ratings assigned by the Source Selection Evaluation Board ("SSEB") without articulating the specific technical benefits or discriminators that justified the selection of Halcyon Defense Systems Inc. ("Halcyon") at a price premium of approximately $17.4 million over Whitmore's lower-priced proposal. The GAO emphasized that a tradeoff decision must do more than cite adjectival labels; the SSA must explain why the technical advantages identified are worth the additional cost to the Government.

Ground 2 — Materially Unequal Discussions (Sustained). The GAO found that the Air Force conducted materially unequal discussions during the August 14–25, 2023 discussion period, in violation of FAR § 15.306(d)(1). While the Contracting Officer issued two Evaluation Notices to Whitmore identifying alleged weaknesses in its proposal, no corresponding Evaluation Notices were issued to Halcyon regarding supply chain risk management concerns that the SSEB's own internal evaluation notes documented as a "significant concern." The GAO concluded that this disparity was not the product of legitimate differences in the proposals but rather reflected an uneven application of the discussion process.

Ground 3 — Organizational Conflict of Interest (Denied). The GAO denied Whitmore's protest on Ground 3, which alleged that Halcyon Analytical Services LLC's prior Analysis of Alternatives ("AoA") study conducted under Contract No. FA8222-21-C-0018 created an impaired objectivity organizational conflict of interest ("OCI") that the Contracting Officer failed to adequately investigate or mitigate. The GAO found that the Air Force's OCI analysis was reasonable and that the AoA study did not provide Halcyon Defense Systems Inc. with an unfair competitive advantage under the circumstances presented.

Ground 4 — Price Realism (Not Reached). The GAO declined to reach Whitmore's Ground 4 allegation — that the Air Force failed to evaluate the realism of Halcyon's CLIN 0002 labor rates — finding the issue academic in light of the sustained grounds and the recommended corrective action.

Recommended Corrective Action. The GAO recommended that the Air Force take four specific corrective actions:

1. Reevaluate proposals under Factor 1 (Technical Approach) and Factor 3 (Management Approach) consistent with the decision;

2. Conduct a new best-value tradeoff with a documented rationale that complies with FAR § 15.308;

3. Terminate Halcyon's contract for convenience (Contract No. FA8222-23-D-0193) if Whitmore is selected for award following the reevaluation and new tradeoff decision; and

4. Reimburse Whitmore's protest costs, including reasonable attorneys' fees, in accordance with 31 U.S.C. § 3554(c)(1)(A) and 4 C.F.R. § 21.8.

The GAO recommended that the corrective action be completed within sixty (60) days of the decision — that is, by approximately March 29, 2024. The Air Force's February 5, 2024 notification to the GAO confirmed the agency's intent to implement the corrective action in full. Whitmore expects the Air Force to adhere to both the substance and the timeline of the GAO's recommendations.

II. Scope of Reevaluation — Factor 1 (Technical Approach)

The reevaluation directed by the GAO must encompass all three subfactors of Factor 1 (Technical Approach), as set forth in Section M of the Solicitation:

(a) Subfactor 1(a) — System Design & Integration;

(b) Subfactor 1(b) — Manufacturing Readiness; and

Each of these subfactors was evaluated under the solicitation's adjectival rating scale of Outstanding, Good, Acceptable, Marginal, and Unacceptable.

The GAO's decision specifically identified Subfactor 1(b) — Manufacturing Readiness — as the locus of the flawed tradeoff. The SSDD prepared by BGen Jeffcoat as SSA noted that Halcyon received an "Outstanding" rating under Subfactor 1(b), while Whitmore received an "Acceptable" rating. However, the GAO found that the SSDD merely restated these adjectival labels without identifying specific technical benefits or discriminators warranting the price premium paid to Halcyon. As the GAO observed, "a tradeoff decision that simply recites the differences in adjectival ratings, without more, does not satisfy the agency's obligation to document a reasoned basis for its source selection decision."

Whitmore emphasizes that the corrective reevaluation must not merely re-label the same conclusory assessments. It is not sufficient for the SSEB (chaired by Dr. Yolanda R. Fenn) to reproduce the same evaluation narratives with additional boilerplate language. Rather, the SSEB must produce evaluation findings that identify concrete, documentable technical advantages — if any — that distinguish the offerors' proposals under each subfactor. To the extent the reevaluation identifies meaningful discriminators under Subfactor 1(b), those discriminators must be traceable to specific proposal content and must be evaluated in a manner consistent with the solicitation's stated evaluation criteria.

It is also important that the reevaluation consider the overall Factor 1 picture in context. Under Subfactor 1(a) (System Design & Integration), both Whitmore and Halcyon received "Outstanding" ratings. Under Subfactor 1(c) (Test & Evaluation Plan), both offerors received "Good" ratings. These equivalent ratings are significant. The reevaluation must address whether the Manufacturing Readiness differential under Subfactor 1(b) — standing alone against a backdrop of equivalent ratings under the other two subfactors — provides a reasonable basis for any tradeoff in favor of the higher-priced offeror. Where the offerors are equally rated on two of three subfactors within the most important evaluation factor, the agency bears a heightened burden to explain why a single subfactor differential justifies a price premium of $17.4 million.

III. Scope of Reevaluation — Factor 3 (Management Approach)

The reevaluation must also encompass Factor 3 (Management Approach) and its three subfactors:

(a) Subfactor 3(a) — Program Management;

(b) Subfactor 3(b) — Supply Chain Risk Management; and

The reevaluation under Factor 3 is particularly critical because the GAO sustained Ground 2 (unequal discussions) based in substantial part on the Air Force's treatment of Halcyon's proposal under Subfactor 3(b) — Supply Chain Risk Management. The GAO found that the SSEB's internal evaluation notes documented a "significant concern" about Halcyon's reliance on Meridian Semiconductor GmbH — a sole-source foreign subcontractor based in Dresden, Germany — for critical gallium arsenide (GaAs) sensor wafers that constitute a key component of the infrared countermeasure pod assemblies being procured. Despite this documented concern regarding sole-source supply chain concentration risk in a foreign jurisdiction, the Air Force issued no Evaluation Notices to Halcyon on this topic during the August 14–25, 2023 discussion period.

By contrast, during the same discussion period, the Air Force issued two Evaluation Notices to Whitmore — EN-WAL-001 and EN-WAL-002 — identifying alleged weaknesses in Whitmore's Manufacturing Readiness subfactor. The asymmetry is plain: the agency identified concerns with both offerors' proposals in its evaluation records, but only raised those concerns with one offeror during discussions, while remaining silent with the other. The GAO correctly found that this disparity constituted materially unequal discussions in violation of FAR § 15.306(d)(1).

In implementing the corrective action, the Air Force must reopen discussions and provide Halcyon an opportunity to address the sole-source supply chain concentration risk associated with its reliance on Meridian Semiconductor GmbH. At the same time, the Air Force must provide Whitmore meaningful discussions on any remaining concerns identified during the reevaluation. The discussions must be conducted in a manner that affords both offerors equal treatment and an equivalent opportunity to address evaluation concerns, consistent with FAR § 15.306(d).

Whitmore also draws the Air Force's attention to the differential under Subfactor 3(c) — ITAR/Export Compliance. Whitmore received an "Outstanding" rating on this subfactor, while Halcyon received a "Good" rating. This differential is particularly relevant given Halcyon's reliance on a foreign subcontractor for GaAs sensor wafers, which may implicate International Traffic in Arms Regulations ("ITAR") and export control considerations. The new tradeoff analysis must weigh this ITAR/Export Compliance differential as part of the overall assessment of the offerors' relative merits under Factor 3.

IV. Requirements for the New Best-Value Tradeoff Decision

The corrective action must culminate in a new best-value tradeoff decision that complies with FAR § 15.308 and the solicitation's stated evaluation methodology. The GAO's decision makes clear that the prior SSDD was deficient because it failed to document a specific, substantive rationale for selecting the higher-priced offeror. The new tradeoff decision must not repeat this deficiency.

Specifically, the SSA must identify the particular technical benefits or discriminators that justify paying any price premium over the lower-priced technically acceptable proposal. The evaluated prices submitted by the two offerors in the competitive range are as follows:

The solicitation's Section M evaluation criteria established the following hierarchy of evaluation factors:

• Factor 1 (Technical Approach) — "Most Important"

• Factor 2 (Past Performance) — "Important"

• Factor 3 (Management Approach) — "Important"

• Factor 4 (Price) — "Least Important"

• Technical/non-price factors, when combined, were stated to be "significantly more important than price."

While the solicitation's evaluation hierarchy permits the SSA to award to a higher-priced offeror if the technical advantages justify the price premium, that permission is not unbounded. The SSA must articulate what specific proposal features, approaches, or capabilities constitute meaningful discriminators — not merely that one offeror received higher adjectival ratings. The new SSDD must go beyond restating adjectival labels. It must identify concrete advantages traceable to the offerors' proposal content, explain why those advantages are meaningful in the context of the Government's requirements, and explain why they are worth the additional $17.4 million cost to the Government.

Both offerors received "Substantial Confidence" ratings under Factor 2 (Past Performance). That factor was not at issue in the protest and presumably will not change upon reevaluation. To the extent that Past Performance ratings are equivalent, the tradeoff analysis necessarily must focus on the differentials, if any, under Factors 1 and 3 — and must explain why those differentials justify the evaluated price difference.

The procurement at issue involves the acquisition of advanced infrared countermeasure ("IRCM") pod assemblies under an indefinite-delivery/indefinite-quantity ("IDIQ") contract with a ceiling of $387,500,000 over a five-year ordering period (base year plus four option years) and a guaranteed minimum of $14,200,000. The magnitude and strategic importance of this contract reinforce the necessity of a well-documented, thoroughly reasoned tradeoff decision. The stakes for both the offerors and the Government demand that the SSA's decision reflect genuine analysis, not formulaic recitation.

V. Factor 2 (Past Performance) — No Changes Expected

As noted above, both Whitmore and Halcyon received "Substantial Confidence" ratings under Factor 2 (Past Performance). This factor was not a basis for the protest and was not addressed in the GAO's decision.

Whitmore notes its strong past performance record for the Government's benefit as the reevaluation proceeds. Among other relevant contract performance, Whitmore successfully completed a $92,400,000 firm-fixed-price production contract (Contract No. FA8222-19-C-0041) for AN/AAQ-45 pod subassemblies delivered to the Air Force and Navy between 2019 and 2022. That contract was completed on schedule and within budget, with no corrective action requests or cure notices issued during the period of performance. Whitmore's track record of successful performance on closely analogous work strongly supports its "Substantial Confidence" rating.

Whitmore does not expect the corrective action to produce changes to the Past Performance evaluation. However, Whitmore reserves its rights fully in the event the agency's reevaluation produces any changes to this factor, whether in rating or in the underlying narrative assessment.

VI. Process Expectations — Discussions and Final Proposal Revisions

The GAO's sustained finding of materially unequal discussions necessarily requires the corrective action to include the reopening of discussions with all offerors in the competitive range. Whitmore expects the Air Force to conduct new discussions that are meaningful, equitable, and compliant with FAR § 15.306(d).

Specifically, Whitmore expects the following:

1. The Contracting Officer, Colonel Diane W. Prescott, USAF, should issue new Evaluation Notices as appropriate to both offerors, ensuring parity in the scope and substance of the discussions conducted. Each offeror must be provided an opportunity to address any concerns, deficiencies, or weaknesses identified during the reevaluation.

2. Following meaningful discussions, both offerors should be afforded an opportunity to submit revised Final Proposal Revisions ("FPRs"). This is consistent with the standard corrective action process and is necessary to ensure that the final evaluation reflects each offeror's best and most current response to the Government's requirements.

3. Contract Specialist Vincent R. Talmadge and the SSEB should apply the evaluation criteria set forth in Section M of the Solicitation consistently across all proposals. The evaluation must be conducted by qualified evaluators with appropriate technical expertise, and the evaluation record must document the basis for all ratings and narrative assessments.

Whitmore is prepared to participate constructively in the discussion process and to submit a revised FPR promptly upon request. Whitmore is confident that its proposal, when evaluated on a level playing field and in accordance with the solicitation's stated criteria, represents the best value to the Government.

VII. Timeline and 60-Day Recommendation

The GAO recommended that the corrective action be completed within sixty (60) days of the January 29, 2024 decision. This establishes an approximate target date of March 29, 2024 for the completion of all corrective action steps, including reevaluation, discussions, receipt of revised FPRs, new evaluation, and a new source selection decision.

Whitmore recognizes that the 60-day timeline is ambitious given the scope of the corrective action required. Nevertheless, Whitmore urges the Air Force to adhere to this timeline to the greatest extent practicable. Every day of delay in the corrective action process extends the period during which Whitmore is denied the opportunity to compete for a contract award on fair and equal terms.

To that end, Whitmore requests that the Air Force provide a proposed corrective action timeline to Whitmore's counsel at Calderwood & Harkness no later than February 20, 2024. The timeline should identify the key milestones, including the anticipated dates for reopening discussions, issuance of Evaluation Notices, submission of revised FPRs, completion of the reevaluation, and issuance of the new source selection decision. Early communication regarding the corrective action schedule will facilitate efficient participation by all parties and minimize the risk of delay.

Whitmore stands ready to cooperate fully and to respond promptly to any requests for revised proposals, clarifications, or other information necessary to support the corrective action process.

VIII. Protest Cost Claim

Consistent with the GAO's recommendation that the Air Force reimburse Whitmore's protest costs, including reasonable attorneys' fees, Whitmore submitted its certified claim for protest costs on February 7, 2024. The claim totals $365,959.72, consisting of the following:

The claim was submitted in accordance with 4 C.F.R. § 21.8(f) and was accompanied by appropriate supporting documentation, including detailed billing records, invoices, and a certification of costs by Whitmore's Chief Financial Officer.

Whitmore requests that the Contracting Officer process the cost claim on an expedited basis and provide a determination within thirty (30) days of submission — that is, by no later than March 8, 2024. Timely processing of the cost claim is appropriate given the GAO's clear recommendation and the Air Force's stated intent to implement the corrective action in full.

IX. Reservation of Rights

Whitmore reserves all rights to file a subsequent protest at the GAO, or to pursue any other available remedy, if the corrective action is not implemented in a manner consistent with the GAO's decision and recommendations. Without limitation, Whitmore specifically reserves the following:

(a) The right to challenge any new award decision that does not comply with FAR § 15.308 and the solicitation's stated evaluation methodology, including but not limited to any decision that fails to document a specific, substantive rationale for a best-value tradeoff;

(b) The right to challenge any aspect of the reevaluation process that does not conform to the GAO's recommendations or that otherwise violates applicable procurement law and regulation;

(c) The right to challenge any failure to conduct meaningful and equitable discussions with all offerors in the competitive range, in accordance with FAR § 15.306(d);

(d) The right to seek additional protest costs and attorneys' fees in connection with any subsequent protest; and

(e) The right to pursue any and all remedies available under applicable law, including but not limited to 31 U.S.C. § 3553 (relating to the duty to implement GAO recommendations) and any other provision of the Competition in Contracting Act.

Nothing in this letter should be construed as a waiver of any claim, right, or remedy available to Whitmore under applicable law, regulation, or the terms of the solicitation.

X. Conclusion

Whitmore appreciates the Air Force's prompt notification of its intent to comply with the GAO's decision and recommendations. Whitmore has every confidence that the Air Force is committed to conducting a fair, thorough, and well-documented reevaluation process. It is in the interest of both the Government and the offerors that the corrective action be implemented with the rigor and care that a procurement of this magnitude demands.

Whitmore's interests — and, we submit, the Government's interests — are best served by a reevaluation that identifies genuine technical discriminators, conducts equitable discussions, and produces a tradeoff decision that is fully documented and capable of withstanding scrutiny. Whitmore is prepared to demonstrate, through a fair and level evaluation process, that its proposal offers the best value to the Government.

Should you or your colleagues have any questions regarding Whitmore's position as set forth in this letter, or should you wish to discuss any aspect of the corrective action process, please do not hesitate to contact the undersigned directly.

Claudia Merritt Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Direct: (202) 555-7438

Email: cmerritt@calderwoodharkness.com

We look forward to a productive and expeditious corrective action process.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Claudia Merritt Partner On behalf of Whitmore Aerospace LLC

cc:

Marcus J. Whitmore, Chief Executive Officer Whitmore Aerospace LLC 2400 Dominion Ridge Parkway, Suite 800 Herndon, VA 20171

Donald R. Stokes, Vice President, Government Contracts Whitmore Aerospace LLC

Theodore J. Dunaway, Esq. Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, VA 22102 (Counsel for Halcyon Defense Systems Inc.)

Lt. Col. (Ret.) Nathan Yardley, Of Counsel Calderwood & Harkness LLP

Offeror	Evaluated Total Price
Whitmore Aerospace LLC	$343,800,000
Halcyon Defense Systems Inc.	$361,200,000
Difference	$17,400,000 (approx. 4.82%)
Category	Amount
Attorneys' Fees	$347,216.50
Costs (filing fees, expert consultant, reproduction, travel)	$18,743.22
Total	$365,959.72

CALDERWOOD & HARKNESS LLP Attorneys at Law 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-7400 Facsimile: (202) 555-7401 www.calderwoodharkness.com
February 10, 2024
Captain Lucas M. Hargrove, USAF, JAG Trial Attorney, Office of the General Counsel Department of the Air Force Air Force Life Cycle Management Center, Sensors Directorate Wright-Patterson Air Force Base, Ohio 45433
Via Electronic Mail and First-Class Mail
cc: Miriam T. Castellano, Senior Attorney, SAF/GCQ (via electronic mail)
Re: Corrective Action Implementation — GAO Case No. B-422187; B-422187.2 Whitmore Aerospace LLC v. Department of the Air Force Solicitation No. FA8222-23-R-0087 / Contract No. FA8222-23-D-0193
Dear Captain Hargrove:
This firm represents Whitmore Aerospace LLC ("Whitmore" or "WAL") in the above-referenced matter (Engagement No. 1019-00003). We write in connection with the Department of the Air Force's February 5, 2024 notification to the Government Accountability Office ("GAO") indicating the agency's intent to implement corrective action in full, consistent with the decision issued on January 29, 2024, by Managing Associate General Counsel Kenneth R. Woodley in Whitmore Aerospace LLC, B-422187; B-422187.2 (Jan. 29, 2024). We acknowledge and appreciate the Air Force's timely notification.
The purpose of this letter is threefold: (1) to confirm Whitmore's understanding of the scope and substance of the corrective action required under the GAO's decision and recommendations; (2) to ensure mutual understanding of the obligations flowing from the GAO's findings of law and fact, so that the corrective action is implemented in a manner that fully addresses the procurement deficiencies identified; and (3) to place on the record certain process expectations and Whitmore's reservation of rights in the event the corrective action departs from the GAO's recommendations or otherwise fails to comply with applicable law.
We address each of these matters in turn below.
I. Summary of the GAO Decision and Recommended Corrective Action
On January 29, 2024, the GAO sustained Whitmore's protest on two of the four grounds raised. A brief recitation of the GAO's holdings is warranted to frame the discussion that follows.
Ground 1 — Unreasonable Best-Value Tradeoff Analysis (Sustained). The GAO found that the Source Selection Authority ("SSA"), Brigadier General Harlan T. Jeffcoat, USAF, conducted an unreasonable best-value tradeoff analysis in violation of Federal Acquisition Regulation ("FAR") § 15.308. Specifically, the GAO concluded that the Source Selection Decision Document ("SSDD") merely restated the adjectival ratings assigned by the Source Selection Evaluation Board ("SSEB") without articulating the specific technical benefits or discriminators that justified the selection of Halcyon Defense Systems Inc. ("Halcyon") at a price premium of approximately $17.4 million over Whitmore's lower-priced proposal. The GAO emphasized that a tradeoff decision must do more than cite adjectival labels; the SSA must explain why the technical advantages identified are worth the additional cost to the Government.
Ground 2 — Materially Unequal Discussions (Sustained). The GAO found that the Air Force conducted materially unequal discussions during the August 14–25, 2023 discussion period, in violation of FAR § 15.306(d)(1). While the Contracting Officer issued two Evaluation Notices to Whitmore identifying alleged weaknesses in its proposal, no corresponding Evaluation Notices were issued to Halcyon regarding supply chain risk management concerns that the SSEB's own internal evaluation notes documented as a "significant concern." The GAO concluded that this disparity was not the product of legitimate differences in the proposals but rather reflected an uneven application of the discussion process.
Ground 3 — Organizational Conflict of Interest (Denied). The GAO denied Whitmore's protest on Ground 3, which alleged that Halcyon Analytical Services LLC's prior Analysis of Alternatives ("AoA") study conducted under Contract No. FA8222-21-C-0018 created an impaired objectivity organizational conflict of interest ("OCI") that the Contracting Officer failed to adequately investigate or mitigate. The GAO found that the Air Force's OCI analysis was reasonable and that the AoA study did not provide Halcyon Defense Systems Inc. with an unfair competitive advantage under the circumstances presented.
Ground 4 — Price Realism (Not Reached). The GAO declined to reach Whitmore's Ground 4 allegation — that the Air Force failed to evaluate the realism of Halcyon's CLIN 0002 labor rates — finding the issue academic in light of the sustained grounds and the recommended corrective action.
Recommended Corrective Action. The GAO recommended that the Air Force take four specific corrective actions:
1. Reevaluate proposals under Factor 1 (Technical Approach) and Factor 3 (Management Approach) consistent with the decision;
2. Conduct a new best-value tradeoff with a documented rationale that complies with FAR § 15.308;
3. Terminate Halcyon's contract for convenience (Contract No. FA8222-23-D-0193) if Whitmore is selected for award following the reevaluation and new tradeoff decision; and
4. Reimburse Whitmore's protest costs, including reasonable attorneys' fees, in accordance with 31 U.S.C. § 3554(c)(1)(A) and 4 C.F.R. § 21.8.
The GAO recommended that the corrective action be completed within sixty (60) days of the decision — that is, by approximately March 29, 2024. The Air Force's February 5, 2024 notification to the GAO confirmed the agency's intent to implement the corrective action in full. Whitmore expects the Air Force to adhere to both the substance and the timeline of the GAO's recommendations.
II. Scope of Reevaluation — Factor 1 (Technical Approach)
The reevaluation directed by the GAO must encompass all three subfactors of Factor 1 (Technical Approach), as set forth in Section M of the Solicitation:
(a) Subfactor 1(a) — System Design & Integration;
(b) Subfactor 1(b) — Manufacturing Readiness; and
(c) Subfactor 1(c) — Test & Evaluation Plan.
Each of these subfactors was evaluated under the solicitation's adjectival rating scale of Outstanding, Good, Acceptable, Marginal, and Unacceptable.
The GAO's decision specifically identified Subfactor 1(b) — Manufacturing Readiness — as the locus of the flawed tradeoff. The SSDD prepared by BGen Jeffcoat as SSA noted that Halcyon received an "Outstanding" rating under Subfactor 1(b), while Whitmore received an "Acceptable" rating. However, the GAO found that the SSDD merely restated these adjectival labels without identifying specific technical benefits or discriminators warranting the price premium paid to Halcyon. As the GAO observed, "a tradeoff decision that simply recites the differences in adjectival ratings, without more, does not satisfy the agency's obligation to document a reasoned basis for its source selection decision."
Whitmore emphasizes that the corrective reevaluation must not merely re-label the same conclusory assessments. It is not sufficient for the SSEB (chaired by Dr. Yolanda R. Fenn) to reproduce the same evaluation narratives with additional boilerplate language. Rather, the SSEB must produce evaluation findings that identify concrete, documentable technical advantages — if any — that distinguish the offerors' proposals under each subfactor. To the extent the reevaluation identifies meaningful discriminators under Subfactor 1(b), those discriminators must be traceable to specific proposal content and must be evaluated in a manner consistent with the solicitation's stated evaluation criteria.
It is also important that the reevaluation consider the overall Factor 1 picture in context. Under Subfactor 1(a) (System Design & Integration), both Whitmore and Halcyon received "Outstanding" ratings. Under Subfactor 1(c) (Test & Evaluation Plan), both offerors received "Good" ratings. These equivalent ratings are significant. The reevaluation must address whether the Manufacturing Readiness differential under Subfactor 1(b) — standing alone against a backdrop of equivalent ratings under the other two subfactors — provides a reasonable basis for any tradeoff in favor of the higher-priced offeror. Where the offerors are equally rated on two of three subfactors within the most important evaluation factor, the agency bears a heightened burden to explain why a single subfactor differential justifies a price premium of $17.4 million.
III. Scope of Reevaluation — Factor 3 (Management Approach)
The reevaluation must also encompass Factor 3 (Management Approach) and its three subfactors:
(a) Subfactor 3(a) — Program Management;
(b) Subfactor 3(b) — Supply Chain Risk Management; and
(c) Subfactor 3(c) — ITAR/Export Compliance.
The reevaluation under Factor 3 is particularly critical because the GAO sustained Ground 2 (unequal discussions) based in substantial part on the Air Force's treatment of Halcyon's proposal under Subfactor 3(b) — Supply Chain Risk Management. The GAO found that the SSEB's internal evaluation notes documented a "significant concern" about Halcyon's reliance on Meridian Semiconductor GmbH — a sole-source foreign subcontractor based in Dresden, Germany — for critical gallium arsenide (GaAs) sensor wafers that constitute a key component of the infrared countermeasure pod assemblies being procured. Despite this documented concern regarding sole-source supply chain concentration risk in a foreign jurisdiction, the Air Force issued no Evaluation Notices to Halcyon on this topic during the August 14–25, 2023 discussion period.
By contrast, during the same discussion period, the Air Force issued two Evaluation Notices to Whitmore — EN-WAL-001 and EN-WAL-002 — identifying alleged weaknesses in Whitmore's Manufacturing Readiness subfactor. The asymmetry is plain: the agency identified concerns with both offerors' proposals in its evaluation records, but only raised those concerns with one offeror during discussions, while remaining silent with the other. The GAO correctly found that this disparity constituted materially unequal discussions in violation of FAR § 15.306(d)(1).
In implementing the corrective action, the Air Force must reopen discussions and provide Halcyon an opportunity to address the sole-source supply chain concentration risk associated with its reliance on Meridian Semiconductor GmbH. At the same time, the Air Force must provide Whitmore meaningful discussions on any remaining concerns identified during the reevaluation. The discussions must be conducted in a manner that affords both offerors equal treatment and an equivalent opportunity to address evaluation concerns, consistent with FAR § 15.306(d).
Whitmore also draws the Air Force's attention to the differential under Subfactor 3(c) — ITAR/Export Compliance. Whitmore received an "Outstanding" rating on this subfactor, while Halcyon received a "Good" rating. This differential is particularly relevant given Halcyon's reliance on a foreign subcontractor for GaAs sensor wafers, which may implicate International Traffic in Arms Regulations ("ITAR") and export control considerations. The new tradeoff analysis must weigh this ITAR/Export Compliance differential as part of the overall assessment of the offerors' relative merits under Factor 3.
IV. Requirements for the New Best-Value Tradeoff Decision
The corrective action must culminate in a new best-value tradeoff decision that complies with FAR § 15.308 and the solicitation's stated evaluation methodology. The GAO's decision makes clear that the prior SSDD was deficient because it failed to document a specific, substantive rationale for selecting the higher-priced offeror. The new tradeoff decision must not repeat this deficiency.
Specifically, the SSA must identify the particular technical benefits or discriminators that justify paying any price premium over the lower-priced technically acceptable proposal. The evaluated prices submitted by the two offerors in the competitive range are as follows:
The solicitation's Section M evaluation criteria established the following hierarchy of evaluation factors:
• Factor 1 (Technical Approach) — "Most Important"
• Factor 2 (Past Performance) — "Important"
• Factor 3 (Management Approach) — "Important"
• Factor 4 (Price) — "Least Important"
• Technical/non-price factors, when combined, were stated to be "significantly more important than price."
While the solicitation's evaluation hierarchy permits the SSA to award to a higher-priced offeror if the technical advantages justify the price premium, that permission is not unbounded. The SSA must articulate what specific proposal features, approaches, or capabilities constitute meaningful discriminators — not merely that one offeror received higher adjectival ratings. The new SSDD must go beyond restating adjectival labels. It must identify concrete advantages traceable to the offerors' proposal content, explain why those advantages are meaningful in the context of the Government's requirements, and explain why they are worth the additional $17.4 million cost to the Government.
Both offerors received "Substantial Confidence" ratings under Factor 2 (Past Performance). That factor was not at issue in the protest and presumably will not change upon reevaluation. To the extent that Past Performance ratings are equivalent, the tradeoff analysis necessarily must focus on the differentials, if any, under Factors 1 and 3 — and must explain why those differentials justify the evaluated price difference.
The procurement at issue involves the acquisition of advanced infrared countermeasure ("IRCM") pod assemblies under an indefinite-delivery/indefinite-quantity ("IDIQ") contract with a ceiling of $387,500,000 over a five-year ordering period (base year plus four option years) and a guaranteed minimum of $14,200,000. The magnitude and strategic importance of this contract reinforce the necessity of a well-documented, thoroughly reasoned tradeoff decision. The stakes for both the offerors and the Government demand that the SSA's decision reflect genuine analysis, not formulaic recitation.
V. Factor 2 (Past Performance) — No Changes Expected
As noted above, both Whitmore and Halcyon received "Substantial Confidence" ratings under Factor 2 (Past Performance). This factor was not a basis for the protest and was not addressed in the GAO's decision.
Whitmore notes its strong past performance record for the Government's benefit as the reevaluation proceeds. Among other relevant contract performance, Whitmore successfully completed a $92,400,000 firm-fixed-price production contract (Contract No. FA8222-19-C-0041) for AN/AAQ-45 pod subassemblies delivered to the Air Force and Navy between 2019 and 2022. That contract was completed on schedule and within budget, with no corrective action requests or cure notices issued during the period of performance. Whitmore's track record of successful performance on closely analogous work strongly supports its "Substantial Confidence" rating.
Whitmore does not expect the corrective action to produce changes to the Past Performance evaluation. However, Whitmore reserves its rights fully in the event the agency's reevaluation produces any changes to this factor, whether in rating or in the underlying narrative assessment.
VI. Process Expectations — Discussions and Final Proposal Revisions
The GAO's sustained finding of materially unequal discussions necessarily requires the corrective action to include the reopening of discussions with all offerors in the competitive range. Whitmore expects the Air Force to conduct new discussions that are meaningful, equitable, and compliant with FAR § 15.306(d).
Specifically, Whitmore expects the following:
1. The Contracting Officer, Colonel Diane W. Prescott, USAF, should issue new Evaluation Notices as appropriate to both offerors, ensuring parity in the scope and substance of the discussions conducted. Each offeror must be provided an opportunity to address any concerns, deficiencies, or weaknesses identified during the reevaluation.
2. Following meaningful discussions, both offerors should be afforded an opportunity to submit revised Final Proposal Revisions ("FPRs"). This is consistent with the standard corrective action process and is necessary to ensure that the final evaluation reflects each offeror's best and most current response to the Government's requirements.
3. Contract Specialist Vincent R. Talmadge and the SSEB should apply the evaluation criteria set forth in Section M of the Solicitation consistently across all proposals. The evaluation must be conducted by qualified evaluators with appropriate technical expertise, and the evaluation record must document the basis for all ratings and narrative assessments.
Whitmore is prepared to participate constructively in the discussion process and to submit a revised FPR promptly upon request. Whitmore is confident that its proposal, when evaluated on a level playing field and in accordance with the solicitation's stated criteria, represents the best value to the Government.
VII. Timeline and 60-Day Recommendation
The GAO recommended that the corrective action be completed within sixty (60) days of the January 29, 2024 decision. This establishes an approximate target date of March 29, 2024 for the completion of all corrective action steps, including reevaluation, discussions, receipt of revised FPRs, new evaluation, and a new source selection decision.
Whitmore recognizes that the 60-day timeline is ambitious given the scope of the corrective action required. Nevertheless, Whitmore urges the Air Force to adhere to this timeline to the greatest extent practicable. Every day of delay in the corrective action process extends the period during which Whitmore is denied the opportunity to compete for a contract award on fair and equal terms.
To that end, Whitmore requests that the Air Force provide a proposed corrective action timeline to Whitmore's counsel at Calderwood & Harkness no later than February 20, 2024. The timeline should identify the key milestones, including the anticipated dates for reopening discussions, issuance of Evaluation Notices, submission of revised FPRs, completion of the reevaluation, and issuance of the new source selection decision. Early communication regarding the corrective action schedule will facilitate efficient participation by all parties and minimize the risk of delay.
Whitmore stands ready to cooperate fully and to respond promptly to any requests for revised proposals, clarifications, or other information necessary to support the corrective action process.
VIII. Protest Cost Claim
Consistent with the GAO's recommendation that the Air Force reimburse Whitmore's protest costs, including reasonable attorneys' fees, Whitmore submitted its certified claim for protest costs on February 7, 2024. The claim totals $365,959.72, consisting of the following:
The claim was submitted in accordance with 4 C.F.R. § 21.8(f) and was accompanied by appropriate supporting documentation, including detailed billing records, invoices, and a certification of costs by Whitmore's Chief Financial Officer.
Whitmore requests that the Contracting Officer process the cost claim on an expedited basis and provide a determination within thirty (30) days of submission — that is, by no later than March 8, 2024. Timely processing of the cost claim is appropriate given the GAO's clear recommendation and the Air Force's stated intent to implement the corrective action in full.
IX. Reservation of Rights
Whitmore reserves all rights to file a subsequent protest at the GAO, or to pursue any other available remedy, if the corrective action is not implemented in a manner consistent with the GAO's decision and recommendations. Without limitation, Whitmore specifically reserves the following:
(a) The right to challenge any new award decision that does not comply with FAR § 15.308 and the solicitation's stated evaluation methodology, including but not limited to any decision that fails to document a specific, substantive rationale for a best-value tradeoff;
(b) The right to challenge any aspect of the reevaluation process that does not conform to the GAO's recommendations or that otherwise violates applicable procurement law and regulation;
(c) The right to challenge any failure to conduct meaningful and equitable discussions with all offerors in the competitive range, in accordance with FAR § 15.306(d);
(d) The right to seek additional protest costs and attorneys' fees in connection with any subsequent protest; and
(e) The right to pursue any and all remedies available under applicable law, including but not limited to 31 U.S.C. § 3553 (relating to the duty to implement GAO recommendations) and any other provision of the Competition in Contracting Act.
Nothing in this letter should be construed as a waiver of any claim, right, or remedy available to Whitmore under applicable law, regulation, or the terms of the solicitation.
X. Conclusion
Whitmore appreciates the Air Force's prompt notification of its intent to comply with the GAO's decision and recommendations. Whitmore has every confidence that the Air Force is committed to conducting a fair, thorough, and well-documented reevaluation process. It is in the interest of both the Government and the offerors that the corrective action be implemented with the rigor and care that a procurement of this magnitude demands.
Whitmore's interests — and, we submit, the Government's interests — are best served by a reevaluation that identifies genuine technical discriminators, conducts equitable discussions, and produces a tradeoff decision that is fully documented and capable of withstanding scrutiny. Whitmore is prepared to demonstrate, through a fair and level evaluation process, that its proposal offers the best value to the Government.
Should you or your colleagues have any questions regarding Whitmore's position as set forth in this letter, or should you wish to discuss any aspect of the corrective action process, please do not hesitate to contact the undersigned directly.
Claudia Merritt Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Direct: (202) 555-7438
Email: cmerritt@calderwoodharkness.com
We look forward to a productive and expeditious corrective action process.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Claudia Merritt Partner On behalf of Whitmore Aerospace LLC
cc:
Marcus J. Whitmore, Chief Executive Officer Whitmore Aerospace LLC 2400 Dominion Ridge Parkway, Suite 800 Herndon, VA 20171
Donald R. Stokes, Vice President, Government Contracts Whitmore Aerospace LLC
Theodore J. Dunaway, Esq. Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, VA 22102 (Counsel for Halcyon Defense Systems Inc.)
Lt. Col. (Ret.) Nathan Yardley, Of Counsel Calderwood & Harkness LLP
Offeror | Evaluated Total Price
Whitmore Aerospace LLC | $343,800,000
Halcyon Defense Systems Inc. | $361,200,000
Difference | $17,400,000 (approx. 4.82%)
Category | Amount
Attorneys' Fees | $347,216.50
Costs (filing fees, expert consultant, reproduction, travel) | $18,743.22
Total | $365,959.72

CALDERWOOD & HARKNESS LLP

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