protest-cost-claim-submission.docx

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

protest-cost-claim-submission.docx DOCUMENT Finance & Banking

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CALDERWOOD & HARKNESS LLP Attorneys at Law 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-8400 Facsimile: (202) 555-8401 www.calderwoodharkness.com

February 7, 2024

Colonel Diane W. Prescott, USAF Contracting Officer Air Force Life Cycle Management Center (AFLCMC) Sensors Directorate Wright-Patterson Air Force Base, Ohio 45433

Re: Certified Claim for Reimbursement of Protest Costs GAO Case No.: B-422187; B-422187.2 Solicitation No.: FA8222-23-R-0087 Contract No.: FA8222-23-D-0193 (awarded to Halcyon Defense Systems Inc.) Protester: Whitmore Aerospace LLC GAO Decision Date: January 29, 2024

Dear Colonel Prescott:

I. INTRODUCTION AND BASIS FOR CLAIM

The law firm of Calderwood & Harkness LLP hereby submits this certified claim on behalf of its client, Whitmore Aerospace LLC ("Whitmore" or "WAL"), a Virginia limited liability company headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171. This claim seeks reimbursement of protest costs, including reasonable attorneys' fees, incurred by Whitmore in connection with the successful prosecution of its bid protest before the United States Government Accountability Office ("GAO") in the matter captioned Whitmore Aerospace LLC, B-422187; B-422187.2.

This claim is submitted pursuant to the recommendation of the GAO in its decision dated January 29, 2024, authored by Kenneth R. Woodley, Managing Associate General Counsel. In that decision, the GAO sustained Whitmore's protest on two of the four grounds raised. Specifically, the GAO sustained the protest on Ground 1, finding that the Source Selection Authority's ("SSA's") best-value tradeoff analysis was unreasonable in violation of Federal Acquisition Regulation ("FAR") § 15.308, and on Ground 2, finding that the Air Force conducted materially unequal discussions during the August 14–25, 2023 discussion period, in contravention of established precedent and the requirements of FAR § 15.306(d). The GAO's decision constitutes a binding recommendation that the Department of the Air Force reimburse Whitmore for its reasonable protest costs, including attorneys' fees, and Whitmore hereby presents this claim for adjudication.

Among the corrective actions recommended by the GAO, the decision specifically provides that the Air Force should "reimburse the protester its costs of filing and pursuing the protest, including reasonable attorneys' fees." See Whitmore Aerospace LLC, B-422187; B-422187.2, at 24 (Jan. 29, 2024). On February 5, 2024, the Air Force, acting through you as the Contracting Officer, notified the GAO of its intent to implement the recommended corrective action in full, including the protest cost reimbursement recommendation. Whitmore appreciates the Air Force's timely communication of its intent to comply and submits this claim to facilitate prompt and orderly processing of the cost reimbursement.

This claim is submitted to the Contracting Officer as the appropriate official for adjudication of the protest cost claim. See 4 C.F.R. § 21.8(d)(2) (protester shall file claim for costs "with the contracting agency within 60 days after receipt of the GAO's recommendation that the agency pay the protester its costs"); see also FAR 33.104(h).

The underlying procurement at issue in the protest is Solicitation No. FA8222-23-R-0087, a competitive procurement for an Indefinite-Delivery/Indefinite-Quantity ("IDIQ") contract for advanced infrared countermeasure ("IRCM") pod assemblies. The resulting contract, Contract No. FA8222-23-D-0193, carries a total ceiling value of $387,500,000 and was awarded to Halcyon Defense Systems Inc. ("Halcyon" or "HDS") on September 15, 2023. Whitmore, as the disappointed offeror whose proposal was rated technically acceptable and lower-priced, protested the award decision on multiple grounds, two of which were sustained by the GAO.

The total amount of this certified claim is $365,959.72, comprised of $347,216.50 in attorneys' fees and $18,743.22 in protest-related costs. The claim is supported by the detailed breakdown and exhibits set forth herein.

II. SUMMARY OF GAO PROCEEDINGS

To place this cost claim in its proper context and to demonstrate the reasonableness of the fees and costs incurred, Whitmore provides the following summary of the GAO protest proceedings in B-422187; B-422187.2.

A. Filing and Timeliness

Whitmore filed its protest at the GAO on September 26, 2023, four calendar days after the enhanced written debriefing conducted on September 22, 2023, pursuant to 10 U.S.C. § 3304. The enhanced debriefing provided Whitmore with information regarding the evaluation of its own proposal and the evaluation of the awardee's proposal at the factor and subfactor levels, as well as information concerning the source selection decision. The protest was filed well within the ten-day post-debriefing deadline prescribed by 4 C.F.R. § 21.2(a)(2), which provides that a protest based upon alleged improprieties in an evaluation or award decision must be filed no later than ten days after the basis of protest is known or should have been known.

The GAO issued its notice of protest to the Air Force on September 27, 2023, the day following receipt of the protest filing. Upon issuance of the notice, the automatic stay of contract performance under the Competition in Contracting Act ("CICA"), 31 U.S.C. § 3553(c)(1), took effect. The Air Force did not seek to override the automatic stay, and the stay remained in effect throughout the duration of the protest proceedings.

B. Intervenor

Halcyon Defense Systems Inc., the awardee under Contract No. FA8222-23-D-0193, intervened in the protest on October 2, 2023. Halcyon was represented throughout the protest proceedings by the law firm of Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102. Lead counsel for Halcyon was Theodore J. Dunaway, Partner, and the associate attorney of record was Rachel N. Sorensen. Halcyon participated actively in the proceedings, filing intervenor's comments on the Agency Report, participating in the GAO outcome prediction ADR conference call, and presenting a witness at the January 4, 2024 telephonic hearing.

C. Protest Grounds and Outcome

Whitmore's protest raised four grounds challenging the Air Force's evaluation and source selection decision. The GAO's disposition of each ground is summarized below:

Ground 1 (Sustained — Unreasonable Best-Value Tradeoff Analysis). Whitmore contended that the SSA's best-value tradeoff analysis was unreasonable and failed to comply with FAR § 15.308. Specifically, the Source Selection Decision Document ("SSDD") failed to provide a substantive rationale for why Halcyon's "Outstanding" rating under Factor 1(b) (Manufacturing Readiness) justified paying $17,400,000 — or 4.82% — more than Whitmore's lower-priced proposal. Whitmore's evaluated price was $343,800,000, while Halcyon's evaluated price was $361,200,000. The GAO found that the SSDD merely restated the adjectival ratings assigned by the Source Selection Evaluation Board ("SSEB") without identifying specific technical benefits, discriminators, or qualitative advantages that warranted the price premium. The GAO concluded that the tradeoff analysis was a "mechanical comparison of adjectival ratings" that did not satisfy the requirement for a "reasoned, qualitative analysis" under FAR § 15.308 and well-established GAO precedent. This ground was sustained.

Ground 2 (Sustained — Materially Unequal Discussions). Whitmore contended that the Air Force conducted materially unequal discussions during the August 14–25, 2023 discussion period. The record demonstrated that the Air Force issued two Evaluation Notices ("ENs") to Whitmore — EN-WAL-001 and EN-WAL-002 — identifying weaknesses in Whitmore's Manufacturing Readiness subfactor. However, the Air Force failed to issue any ENs to Halcyon regarding its lower-rated Supply Chain Risk Management subfactor, which received a rating of "Acceptable." The GAO found this disparity to be particularly troubling in light of internal SSEB evaluation notes that identified a "significant concern" regarding Halcyon's reliance on a sole-source foreign subcontractor, Meridian Semiconductor GmbH, for critical gallium arsenide sensor wafers used in the IRCM pod assemblies. Despite this documented concern, the Air Force did not raise the issue with Halcyon during discussions, nor did it issue an EN that would have afforded Halcyon the opportunity to address the concern and potentially strengthen its proposal. The GAO held that the failure to raise this documented concern with Halcyon, while simultaneously raising analogous manufacturing and supply chain concerns with Whitmore, constituted materially unequal discussions in violation of FAR § 15.306(d)(1). This ground was sustained.

Ground 3 (Denied — Organizational Conflict of Interest). Whitmore alleged that Halcyon benefited from an impaired objectivity organizational conflict of interest ("OCI") arising from the prior performance by Halcyon Analytical Services LLC — a wholly-owned subsidiary of Halcyon Defense Systems Inc. — of an Analysis of Alternatives ("AoA") study under Contract No. FA8222-21-C-0018, valued at $2,300,000. Whitmore alleged that the AoA study provided Halcyon with non-public, competitively useful information regarding the Air Force's requirements and evaluation criteria for the IRCM pod assembly procurement. After conducting a telephonic hearing on this ground on January 4, 2024, the GAO found insufficient evidence to establish that the AoA study conferred an unfair competitive advantage on Halcyon. The GAO noted that the Air Force had taken adequate mitigation measures, including establishing an OCI mitigation plan and firewalling the AoA study team from the Halcyon proposal team. This ground was denied.

Ground 4 (Not Reached — Labor Rate Realism). Whitmore challenged the Air Force's cost/price realism analysis as applied to Halcyon's proposed labor rates, contending that certain rates were unrealistically low and should have triggered a realism adjustment. Because the GAO sustained the protest on Grounds 1 and 2 and recommended reevaluation and a new source selection decision, the GAO concluded that Ground 4 was rendered academic and declined to reach the merits of this ground.

D. GAO Recommendations

Based on its sustain of Grounds 1 and 2, the GAO issued the following recommendations:

1. The Air Force should reevaluate proposals under Evaluation Factors 1 (Technical/Management Approach, including all subfactors) and 3 (Past Performance) in accordance with the solicitation criteria and applicable regulations.

2. Following reevaluation, the Air Force should conduct a new best-value tradeoff analysis with fully documented rationale that identifies specific technical benefits and discriminators justifying any price premium, in compliance with FAR § 15.308.

3. If, following the reevaluation and new tradeoff analysis, Whitmore's proposal is selected for award, the Air Force should terminate Halcyon's contract, Contract No. FA8222-23-D-0193, for the convenience of the Government and make award to Whitmore.

4. The Air Force should reimburse Whitmore its costs of filing and pursuing the protest, including reasonable attorneys' fees. 4 C.F.R. § 21.8(d)(1).

5. The Air Force should complete the corrective action within sixty (60) days of the date of the GAO's decision, i.e., no later than March 29, 2024.

E. Key Procedural Milestones Relevant to Cost Claim

The following procedural milestones are relevant to an understanding of the work performed by Whitmore's counsel and the reasonableness of the fees and costs claimed:

• October 12, 2023: Protective Order issued by the GAO, governing access to source-selection-sensitive and proprietary information. Counsel for Whitmore prepared and filed the required acknowledgments and complied with all protective order requirements throughout the proceedings, including the handling of ITAR-controlled and classified-at-origin technical data.

• October 30, 2023: The Air Force filed the Agency Report, consisting of forty-seven (47) tabs of supporting documentation, including the solicitation, all amendments, evaluation criteria, the SSEB Report, SSDD, proposal excerpts, cost/price evaluation documentation, OCI mitigation plan, discussion records, and evaluation notices. Review and analysis of this voluminous record constituted a significant portion of counsel's work.

• November 6, 2023: Whitmore, through counsel, filed a Request for Partial Document Production, seeking production of AR Tabs 22, 23, and 28, which had been withheld or redacted by the Air Force on deliberative process and/or attorney-client privilege grounds. Whitmore contended that these tabs contained material evaluation records necessary to assess the merits of the protest.

• November 9, 2023: The GAO, after receiving briefing from all parties, ordered production of AR Tabs 22 and 28 (upholding the withholding of Tab 23 on attorney-client privilege grounds). Tab 22 contained internal SSEB evaluator worksheets, and Tab 28 contained the discussion memorandum documenting the decision to issue ENs to Whitmore but not to Halcyon. These documents proved critical to the GAO's sustain on Ground 2.

• November 17, 2023: Whitmore, through counsel, filed its Comments on the Agency Report, a comprehensive brief addressing all four protest grounds, accompanied by supporting declarations and expert analysis.

• November 22, 2023: The intervenor, Halcyon, through its counsel at Kessler, Pratt & Dunaway LLP, filed its Comments on the Agency Report, opposing Whitmore's protest on all grounds.

• November 27, 2023: The Air Force filed a Supplemental Agency Report, providing additional documentation and narrative response to issues raised in Whitmore's Comments.

• December 4, 2023: Whitmore, through counsel, filed Supplemental Comments responding to the Air Force's Supplemental Agency Report and to the intervenor's Comments.

• December 8, 2023: The GAO conducted an outcome prediction alternative dispute resolution ("ADR") conference call, facilitated by Senior Attorney Angela M. Palermino of the GAO Procurement Law Division. During the ADR conference, the GAO attorney shared the office's preliminary assessment of the likely outcome of the protest. The parties declined to reach a resolution through the ADR process, and the protest proceeded to a decision on the merits.

• January 4, 2024: The GAO conducted a telephonic hearing on Ground 3 (OCI allegation). Three witnesses testified: Donald R. Stokes, Vice President of Government Contracts for Whitmore Aerospace LLC; Greta M. Holloway, Vice President of Business Development for Halcyon Defense Systems Inc.; and Colonel Diane W. Prescott, USAF, the Contracting Officer. Counsel for all parties participated in direct and cross-examination. The hearing required significant advance preparation, including the preparation of pre-hearing briefs, witness outlines, documentary exhibits, and anticipated cross-examination.

• January 29, 2024: The GAO issued its decision sustaining the protest on Grounds 1 and 2 and denying the protest on Ground 3 (Ground 4 not reached). The decision recommended corrective action, including reimbursement of Whitmore's protest costs.

III. PROTESTER'S COUNSEL AND ENGAGEMENT TERMS

Whitmore retained Calderwood & Harkness LLP to represent it in connection with the GAO protest at issue in this claim. The engagement was opened under Calderwood & Harkness engagement number 1019-00003. The engagement was formalized by an engagement letter dated September 26, 2023, a copy of which is attached hereto as Exhibit A.

The responsible partner for the engagement is Claudia Merritt, a partner in the firm's Government Contracts practice group, who served as lead counsel throughout the protest proceedings and was the signatory on all filings and correspondence with the GAO. The billing partner is Ian Blackwood, also a partner in the Government Contracts practice group, who provided strategic oversight, participated in key client communications, reviewed all major filings prior to submission, and participated in the January 4, 2024 hearing.

The engagement team consisted of the following timekeepers, each of whom contributed to the prosecution of the protest:

Partners:

• Claudia Merritt — Lead counsel; responsible for overall case strategy, client communications, all GAO filings and correspondence, cross-examination of witnesses at the January 4, 2024 hearing, and participation in the December 8, 2023 ADR conference call.

• Ian Blackwood — Billing partner; strategic oversight, review of all major filings, participation in hearing preparation and the January 4, 2024 hearing, and client briefings.

• Blended billing rate: $695.00 per hour.

Of Counsel:

• Lt. Col. (Ret.) Nathan Yardley — Of Counsel in the firm's Government Contracts practice. Lt. Col. (Ret.) Yardley is a retired Air Force Judge Advocate with extensive experience in government contracts procurement, source selection procedures, and GAO protest litigation. He provided substantive analysis of all four protest grounds, drafted significant portions of the Comments on Agency Report and Supplemental Comments, assisted with hearing preparation, and advised on military procurement procedures and FAR/DFARS regulatory requirements.

• Billing rate: $475.00 per hour.

Senior Associate:

• Megan Zhao — Senior Associate in the firm's Litigation practice, with a focus on government contracts disputes. Ms. Zhao was responsible for hearing preparation, including witness outlines and documentary exhibits, drafting of the initial protest filing, substantial drafting contributions to the Comments on Agency Report, analysis of the forty-seven-tab Agency Report, and coordination with the expert consultant.

• Billing rate: $385.00 per hour.

Associates:

• Alan Burke — Lead Associate; practice areas include Privacy & Data Security and ITAR/EAR compliance. Mr. Burke conducted extensive legal research, performed document review of the Agency Report (with particular attention to ITAR-controlled and export-sensitive materials), drafted sections of the protest and comments addressing the OCI ground, and provided analysis of the ITAR/export compliance overlay relevant to the gallium arsenide sensor wafer supply chain issues central to Ground 2.

• Sara Hendricks — Working Associate; practice areas include Privacy & Data Security. Ms. Hendricks provided drafting support, assisted with document review and organization, prepared exhibit binders and filing packages, assisted with legal research, and supported hearing preparation logistics.

• Blended billing rate: $315.00 per hour.

The firm agreed to a voluntary fee cap of $425,000 (fees only, exclusive of costs) for the entirety of the engagement, as reflected in the engagement letter attached as Exhibit A. The total attorneys' fees claimed herein, $347,216.50, fall well below this voluntary cap.

All billing rates set forth above are blended hourly rates as established in the September 26, 2023 engagement letter. These rates are consistent with, and in many cases below, the prevailing market rates for government contracts bid protest litigation in the Washington, D.C. metropolitan area. As the GAO and the Court of Federal Claims have consistently recognized, rates for experienced government contracts attorneys in the Washington, D.C. area typically range from $300 to $850 per hour for partners, $250 to $550 per hour for of counsel attorneys, and $200 to $450 per hour for associates, depending on experience and the complexity of the matter. See, e.g., Ashbury Partners LLC, B-409585.2, 2015 CPD ¶ 3; Jacobs Tech. Inc., B-413389.2, 2017 CPD ¶ 113. The rates charged in this matter fall squarely within these ranges and are reasonable under the circumstances.

IV. TOTAL CLAIM AMOUNT

The total amount of this certified claim for reimbursement of protest costs is as follows:

Each category is detailed in Sections V and VI below, with full supporting documentation provided in the accompanying exhibits.

V. ATTORNEYS' FEES — DETAILED BREAKDOWN

A. Summary by Timekeeper Category

The following table provides a summary of the attorneys' fees incurred, organized by timekeeper category:

Adjustments are set forth in Section V.B below, resulting in a final total of $347,216.50.

B. Adjustments

In preparing this claim, Whitmore's counsel conducted a thorough review of all time entries to identify and remove any non-compensable time, including entries reflecting purely administrative or clerical tasks, duplicative entries, and any time not directly attributable to the prosecution of the protest. The following adjustments have been applied:

1. Removal of Non-Compensable Administrative Time. A total of 0.1 hours of non-compensable administrative time at the associate level has been identified and removed. This entry reflected time spent by an associate on internal filing and docketing tasks that are properly classified as clerical rather than legal work. The reduction is calculated as 0.1 hours × $315.00/hour = $31.50 removed.

2. Adjusted Associate Subtotal. After removal of the 0.1 hours of administrative time, the associate subtotal is adjusted from $102,217.50 to $102,186.00.

3. Rounding Corrections. A further adjustment of $4.50 has been applied to account for cumulative rounding corrections of 0.015 hours across multiple timekeepers. These rounding discrepancies arose from the conversion of the firm's six-minute billing increment entries to decimal format for purposes of this submission. The net effect of these rounding corrections, applied pro rata across timekeeper categories, results in a minor downward adjustment to the total.

4. Final Recalculated Total. The recalculated subtotals are as follows:

• Partners: $99,037.50

• Of Counsel: $88,825.00

• Senior Associate: $57,172.50

• Associates (adjusted): $102,186.00

• Subtotal: $347,221.00

• Less rounding corrections: ($4.50)

• Final Attorneys' Fees Total: $347,216.50

C. Reasonableness of Hours

The total hours expended across all timekeepers are 802.5 hours (pre-adjustment). Whitmore submits that these hours are reasonable and necessary in light of the following factors:

Complexity of the Procurement. The underlying procurement involved an IDIQ contract with a total ceiling value of $387,500,000 for advanced IRCM pod assemblies — a technically complex, safety-critical, and strategically significant defense system. The evaluation involved multiple technical factors and subfactors, detailed cost/price analysis, manufacturing readiness assessments, supply chain risk management evaluations, and past performance analysis. The complexity of the procurement required counsel to develop and maintain a deep understanding of the underlying technology, the industrial base, and the specialized regulatory framework governing the procurement.

Number and Complexity of Protest Grounds. The protest raised four substantive grounds, each of which required independent factual investigation, legal research, and briefing. Ground 1 required detailed analysis of the SSDD and SSEB report to demonstrate the inadequacy of the tradeoff rationale. Ground 2 required painstaking comparison of the discussion records for both offerors, analysis of the SSEB evaluation notes, and development of the legal framework for materially unequal discussions. Ground 3 required investigation of the intervenor's corporate structure, the scope of the prior AoA study, and the adequacy of the OCI mitigation plan. Ground 4 required analysis of the cost/price realism methodology and the reasonableness of the intervenor's proposed labor rates.

Voluminous Agency Report. The Agency Report consisted of forty-seven (47) tabs of documentation, totaling approximately 4,200 pages. Review, analysis, and indexing of this record required substantial associate and senior associate time.

Document Production Motion Practice. The Request for Partial Document Production filed on November 6, 2023, and the GAO's subsequent order on November 9, 2023, required additional briefing and legal research regarding the deliberative process privilege and its application to source selection records. The production of AR Tabs 22 and 28, while ultimately favorable to Whitmore's position, required supplemental analysis and integration of the newly produced materials into the existing briefing framework.

Multiple Rounds of Briefing. The protest involved the preparation and filing of the initial protest, Comments on the Agency Report, Supplemental Comments on the Supplemental Agency Report, pre-hearing briefs, and post-hearing submissions. Each filing required independent legal research, factual analysis, drafting, internal review, and client coordination.

GAO Telephonic Hearing. The January 4, 2024 telephonic hearing on Ground 3 required extensive preparation, including the preparation of direct examination outlines for Mr. Stokes, anticipated cross-examination of the intervenor's and agency's witnesses, identification and organization of documentary hearing exhibits, preparation of a pre-hearing brief, and coordination with the client regarding testimony. The hearing itself involved the examination and cross-examination of three witnesses and lasted approximately four hours.

ITAR/Export Compliance Overlay. The subject matter of the protest — advanced IRCM pod assemblies incorporating gallium arsenide sensor wafers — implicates the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Parts 120–130, and the Export Administration Regulations ("EAR"), 15 C.F.R. Parts 730–774. Counsel was required to ensure compliance with these regulatory frameworks in the handling of source-selection-sensitive materials, particularly those relating to Halcyon's foreign subcontractor, Meridian Semiconductor GmbH. This required specialized associate time for ITAR/EAR compliance review.

Classified/Sensitive Information Handling. The Protective Order issued on October 12, 2023 imposed strict requirements on the handling, storage, and disposal of protected information. Compliance with these requirements, including the preparation of acknowledgment forms, the establishment of internal access controls, and the secure handling of ITAR-sensitive materials, required additional attorney time.

Whitmore's counsel has affirmatively reviewed all time entries and removed any entries reflecting non-compensable time, including administrative, clerical, or duplicative time, prior to submission of this claim. The time entries submitted herein reflect only compensable legal work directly attributable to the prosecution of the protest in B-422187; B-422187.2.

The allocation of work among the engagement team was appropriate and efficient. Partner time reflects strategic oversight, high-level client communication, review and finalization of all filings, key decision-making regarding case strategy, and active participation in the hearing and ADR proceedings. Of Counsel time reflects the substantive application of government contracts expertise and protest procedure experience, including significant drafting contributions and regulatory analysis. Senior Associate time reflects hearing preparation, primary drafting responsibility for certain filings, and detailed analysis of the Agency Report. Associate time reflects legal research, document review, ITAR/export compliance analysis, exhibit preparation, and drafting support tasks that were appropriately delegated to attorneys billing at lower rates.

D. Reasonableness of Rates

The billing rates set forth in this claim are the blended hourly rates agreed upon between Calderwood & Harkness LLP and Whitmore Aerospace LLC in the engagement letter dated September 26, 2023. As noted above, these rates are at or below the prevailing market rates for government contracts bid protest work in the Washington, D.C. metropolitan area.

The reasonableness of counsel's rates is supported by the following:

• The rates are blended rates that do not differentiate based on individual timekeeper seniority within a category. In the case of the partners, the blended rate of $695.00 per hour is below the standard rack rate of at least one of the two partners involved. In the case of the associates, the blended rate of $315.00 per hour reflects a rate at the lower end of the range for associates with comparable experience in the Washington, D.C. government contracts market.

• A copy of Calderwood & Harkness's standard rate schedule, together with the executed engagement letter, is attached as Exhibit A. The rate schedule demonstrates that the blended rates charged in this engagement are below the firm's standard rates for attorneys of comparable experience and seniority.

• The rates are consistent with rates approved by the GAO and the Court of Federal Claims in analogous protest cost reimbursement proceedings involving comparable levels of complexity and similar fee structures.

VI. PROTEST-RELATED COSTS — DETAILED BREAKDOWN

In addition to attorneys' fees, Whitmore incurred the following protest-related costs directly attributable to the prosecution of the protest in B-422187; B-422187.2:

All costs set forth above are directly and exclusively attributable to the prosecution of the protest in B-422187; B-422187.2. No costs related to other matters, other clients, or the underlying procurement have been included. Whitmore has not sought reimbursement for any internal administrative costs, overhead, or opportunity costs.

Receipts, invoices, and supporting documentation for each cost item are attached hereto as Exhibit B, organized as follows:

• Exhibit B-1: Ridgeline Consulting Group LLC invoice dated November 14, 2023 ($8,200.00)

• Exhibit B-2: Transcript service invoice dated January 11, 2024 ($4,312.00)

• Exhibit B-3: Travel expense receipts — Washington, D.C. to Dayton, Ohio, November 2–4, 2023 ($3,881.22)

• Exhibit B-4: Electronic filing and reproduction invoices ($1,650.00)

• Exhibit B-5: Courier and overnight delivery receipts ($700.00)

VII. SUPPORTING DOCUMENTATION INDEX

The following exhibits are attached to and incorporated by reference in this claim submission:

All exhibits are submitted as true and correct copies. The time records in Exhibit C have been reviewed for completeness and accuracy, and all non-compensable entries have been removed prior to submission.

VIII. CERTIFICATION

The undersigned, Donald R. Stokes, Vice President, Government Contracts, Whitmore Aerospace LLC, hereby certifies as follows in connection with the claim for reimbursement of protest costs set forth in this submission:

1. I am the Vice President of Government Contracts for Whitmore Aerospace LLC, a Virginia limited liability company, and I am duly authorized to submit this claim on behalf of Whitmore Aerospace LLC. My authorization to act in this capacity has been confirmed by the Chief Executive Officer of Whitmore Aerospace LLC, Marcus J. Whitmore.

2. This claim is made in good faith. The amounts set forth herein represent actual costs and attorneys' fees incurred by Whitmore Aerospace LLC in connection with the prosecution of its bid protest before the U.S. Government Accountability Office in the matter of Whitmore Aerospace LLC, B-422187; B-422187.2.

3. The supporting data provided with this claim, including all exhibits, time records, invoices, receipts, and other documentation, are accurate and complete to the best of my knowledge and belief. I have reviewed the supporting data and have made reasonable inquiry to verify its accuracy.

4. The total amount requested in this claim, $365,959.72, accurately reflects the costs and attorneys' fees incurred by Whitmore Aerospace LLC in connection with the protest. This amount has not been inflated, and no duplicative, administrative, or non-compensable charges have been knowingly included.

5. This certification is made under penalty of perjury pursuant to 28 U.S.C. § 1746. I declare under penalty of perjury that the foregoing is true and correct.

WHITMORE AEROSPACE LLC

By: ________

Name: Donald R. Stokes

Title: Vice President, Government Contracts

Address: 2400 Dominion Ridge Parkway, Suite 800

Herndon, Virginia 20171

Date: February 7, 2024

IX. REQUEST FOR ACTION

Based on the foregoing, Whitmore Aerospace LLC respectfully requests that the Contracting Officer process and pay this certified claim in the amount of $365,959.72 in accordance with the GAO's recommendation in Whitmore Aerospace LLC, B-422187; B-422187.2, dated January 29, 2024. This amount is comprised of $347,216.50 in reasonable attorneys' fees and $18,743.22 in protest-related costs, each as detailed above and supported by the accompanying exhibits.

Whitmore notes that the GAO's decision recommended that the Air Force complete all corrective action, including payment of protest costs, within sixty (60) days of the date of the decision, i.e., no later than March 29, 2024. Whitmore respectfully requests that the Contracting Officer process this claim on a timeline consistent with that recommendation.

Whitmore further requests that the Contracting Officer acknowledge receipt of this claim and provide an estimated timeline for review and payment. Whitmore's counsel stands ready to provide any additional information, clarification, or documentation that the Contracting Officer may require to facilitate prompt adjudication of this claim.

Finally, Whitmore Aerospace LLC reserves all rights under applicable law to pursue this claim before the appropriate forum, including but not limited to the Armed Services Board of Contract Appeals or the United States Court of Federal Claims, in the event that payment is not made within a reasonable time or the claim is denied in whole or in part. See 4 C.F.R. § 21.8(e); FAR 33.104(h). This reservation of rights is stated for the record and does not reflect any expectation that such action will be necessary; to the contrary, Whitmore appreciates the Air Force's prompt notification of its intent to comply with the GAO's recommendations and looks forward to a cooperative resolution of this claim.

X. CLOSING

We appreciate the Contracting Officer's attention to this matter and look forward to the prompt resolution of this claim. Should you have any questions or require additional information, please do not hesitate to contact the undersigned at (202) 555-8412 or cmerritt@calderwoodharkness.com.

Respectfully submitted on behalf of Whitmore Aerospace LLC

CALDERWOOD & HARKNESS LLP

By: ________

Claudia Merritt Partner Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-8412

Email: cmerritt@calderwoodharkness.com

Engagement No.: 1019-00003

Date: February 7, 2024

cc (via electronic mail and first-class mail):

Marcus J. Whitmore, Chief Executive Officer, Whitmore Aerospace LLC

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

Patricia "Trish" Langford, Chief Financial Officer, Whitmore Aerospace LLC

Captain Lucas M. Hargrove, USAF, JAG, Trial Attorney, Department of the Air Force

Miriam T. Castellano, Senior Attorney, Office of the General Counsel (SAF/GCQ), Department of the Air Force

Vincent R. Talmadge, Contract Specialist, AFLCMC Sensors Directorate, Wright-Patterson Air Force Base, Ohio

Theodore J. Dunaway, Partner, Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102 (counsel for intervenor Halcyon Defense Systems Inc.)

GAO Procurement Law Division (for case file B-422187; B-422187.2), U.S. Government Accountability Office, 441 G Street NW, Washington, D.C. 20548

Enclosures: Exhibits A through E (as described in Section VII)

Category	Amount
Attorneys' Fees	$347,216.50
Protest-Related Costs	$18,743.22
Total Protest Cost Claim	$365,959.72
Timekeeper Category	Timekeepers	Hours	Rate (per hour)	Subtotal
Partners	Claudia Merritt, Ian Blackwood	142.5	$695.00	$99,037.50
Of Counsel	Lt. Col. (Ret.) Nathan Yardley	187.0	$475.00	$88,825.00
Senior Associate	Megan Zhao	148.5	$385.00	$57,172.50
Associates	Alan Burke, Sara Hendricks	324.5	$315.00	$102,217.50 (pre-adjustment)
Subtotal (Pre-Adjustment)	802.5	$347,252.50
Cost Category	Payee / Description	Amount
Expert Consultant	Ridgeline Consulting Group LLC (Janet K. Overmeyer, Principal; 4501 Fairfax Drive, Suite 200, Arlington, VA 22203) — expert analysis and declaration regarding Manufacturing Readiness evaluation methodology and the reasonableness of the SSEB's assessment of the offerors' manufacturing readiness levels	$8,200.00
Hearing/Deposition Transcripts	Transcript costs for January 4, 2024 GAO telephonic hearing on Ground 3 (OCI allegation), including real-time transcript service and certified copies	$4,312.00
Travel	Washington, D.C. to Dayton, Ohio for on-site document inspection of source-selection-sensitive materials at Wright-Patterson Air Force Base (round-trip airfare for two attorneys, two nights lodging, ground transportation, and per diem meals, November 2–4, 2023)	$3,881.22
Electronic Filing and Reproduction	GAO electronic filing fees, document reproduction, and printing costs for filings, exhibit binders, and internal working copies of the 47-tab Agency Report	$1,650.00
Courier / Overnight Delivery	Severin Partners LLC Priority Overnight and local courier services for submission of time-sensitive filings, correspondence with the GAO, and delivery of protective-order-controlled materials	$700.00
Total Protest-Related Costs	$18,743.22
Exhibit	Description
Exhibit A	Engagement letter dated September 26, 2023, between Calderwood & Harkness LLP and Whitmore Aerospace LLC, including fee schedule, rate documentation, and voluntary fee cap agreement (Engagement No. 1019-00003)
Exhibit B	Receipts, invoices, and supporting documentation for protest-related costs ($18,743.22), organized as follows:
Exhibit B-1	Ridgeline Consulting Group LLC invoice ($8,200.00)
Exhibit B-2	Transcript service invoice ($4,312.00)
Exhibit B-3	Travel expense receipts — D.C. to Dayton, OH ($3,881.22)
Exhibit B-4	Electronic filing/reproduction invoices ($1,650.00)
Exhibit B-5	Courier/delivery receipts ($700.00)

Exhibit C	Time records summary by timekeeper and month, in both PDF and accompanying Excel workbook format, showing date, timekeeper, hours, rate, narrative description of work performed, and calculated fees for each entry
Exhibit D	Copy of GAO decision, Whitmore Aerospace LLC, B-422187; B-422187.2, dated January 29, 2024
Exhibit E	Copy of Air Force notification of intent to comply with GAO recommendation, dated February 5, 2024

CALDERWOOD & HARKNESS LLP Attorneys at Law 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-8400 Facsimile: (202) 555-8401 www.calderwoodharkness.com
February 7, 2024
Colonel Diane W. Prescott, USAF Contracting Officer Air Force Life Cycle Management Center (AFLCMC) Sensors Directorate Wright-Patterson Air Force Base, Ohio 45433
Re: Certified Claim for Reimbursement of Protest Costs GAO Case No.: B-422187; B-422187.2 Solicitation No.: FA8222-23-R-0087 Contract No.: FA8222-23-D-0193 (awarded to Halcyon Defense Systems Inc.) Protester: Whitmore Aerospace LLC GAO Decision Date: January 29, 2024
Dear Colonel Prescott:
I. INTRODUCTION AND BASIS FOR CLAIM
The law firm of Calderwood & Harkness LLP hereby submits this certified claim on behalf of its client, Whitmore Aerospace LLC ("Whitmore" or "WAL"), a Virginia limited liability company headquartered at 2400 Dominion Ridge Parkway, Suite 800, Herndon, Virginia 20171. This claim seeks reimbursement of protest costs, including reasonable attorneys' fees, incurred by Whitmore in connection with the successful prosecution of its bid protest before the United States Government Accountability Office ("GAO") in the matter captioned Whitmore Aerospace LLC, B-422187; B-422187.2.
This claim is submitted pursuant to the recommendation of the GAO in its decision dated January 29, 2024, authored by Kenneth R. Woodley, Managing Associate General Counsel. In that decision, the GAO sustained Whitmore's protest on two of the four grounds raised. Specifically, the GAO sustained the protest on Ground 1, finding that the Source Selection Authority's ("SSA's") best-value tradeoff analysis was unreasonable in violation of Federal Acquisition Regulation ("FAR") § 15.308, and on Ground 2, finding that the Air Force conducted materially unequal discussions during the August 14–25, 2023 discussion period, in contravention of established precedent and the requirements of FAR § 15.306(d). The GAO's decision constitutes a binding recommendation that the Department of the Air Force reimburse Whitmore for its reasonable protest costs, including attorneys' fees, and Whitmore hereby presents this claim for adjudication.
Among the corrective actions recommended by the GAO, the decision specifically provides that the Air Force should "reimburse the protester its costs of filing and pursuing the protest, including reasonable attorneys' fees." See Whitmore Aerospace LLC, B-422187; B-422187.2, at 24 (Jan. 29, 2024). On February 5, 2024, the Air Force, acting through you as the Contracting Officer, notified the GAO of its intent to implement the recommended corrective action in full, including the protest cost reimbursement recommendation. Whitmore appreciates the Air Force's timely communication of its intent to comply and submits this claim to facilitate prompt and orderly processing of the cost reimbursement.
This claim is submitted to the Contracting Officer as the appropriate official for adjudication of the protest cost claim. See 4 C.F.R. § 21.8(d)(2) (protester shall file claim for costs "with the contracting agency within 60 days after receipt of the GAO's recommendation that the agency pay the protester its costs"); see also FAR 33.104(h).
The underlying procurement at issue in the protest is Solicitation No. FA8222-23-R-0087, a competitive procurement for an Indefinite-Delivery/Indefinite-Quantity ("IDIQ") contract for advanced infrared countermeasure ("IRCM") pod assemblies. The resulting contract, Contract No. FA8222-23-D-0193, carries a total ceiling value of $387,500,000 and was awarded to Halcyon Defense Systems Inc. ("Halcyon" or "HDS") on September 15, 2023. Whitmore, as the disappointed offeror whose proposal was rated technically acceptable and lower-priced, protested the award decision on multiple grounds, two of which were sustained by the GAO.
The total amount of this certified claim is $365,959.72, comprised of $347,216.50 in attorneys' fees and $18,743.22 in protest-related costs. The claim is supported by the detailed breakdown and exhibits set forth herein.
II. SUMMARY OF GAO PROCEEDINGS
To place this cost claim in its proper context and to demonstrate the reasonableness of the fees and costs incurred, Whitmore provides the following summary of the GAO protest proceedings in B-422187; B-422187.2.
A. Filing and Timeliness
Whitmore filed its protest at the GAO on September 26, 2023, four calendar days after the enhanced written debriefing conducted on September 22, 2023, pursuant to 10 U.S.C. § 3304. The enhanced debriefing provided Whitmore with information regarding the evaluation of its own proposal and the evaluation of the awardee's proposal at the factor and subfactor levels, as well as information concerning the source selection decision. The protest was filed well within the ten-day post-debriefing deadline prescribed by 4 C.F.R. § 21.2(a)(2), which provides that a protest based upon alleged improprieties in an evaluation or award decision must be filed no later than ten days after the basis of protest is known or should have been known.
The GAO issued its notice of protest to the Air Force on September 27, 2023, the day following receipt of the protest filing. Upon issuance of the notice, the automatic stay of contract performance under the Competition in Contracting Act ("CICA"), 31 U.S.C. § 3553(c)(1), took effect. The Air Force did not seek to override the automatic stay, and the stay remained in effect throughout the duration of the protest proceedings.
B. Intervenor
Halcyon Defense Systems Inc., the awardee under Contract No. FA8222-23-D-0193, intervened in the protest on October 2, 2023. Halcyon was represented throughout the protest proceedings by the law firm of Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102. Lead counsel for Halcyon was Theodore J. Dunaway, Partner, and the associate attorney of record was Rachel N. Sorensen. Halcyon participated actively in the proceedings, filing intervenor's comments on the Agency Report, participating in the GAO outcome prediction ADR conference call, and presenting a witness at the January 4, 2024 telephonic hearing.
C. Protest Grounds and Outcome
Whitmore's protest raised four grounds challenging the Air Force's evaluation and source selection decision. The GAO's disposition of each ground is summarized below:
Ground 1 (Sustained — Unreasonable Best-Value Tradeoff Analysis). Whitmore contended that the SSA's best-value tradeoff analysis was unreasonable and failed to comply with FAR § 15.308. Specifically, the Source Selection Decision Document ("SSDD") failed to provide a substantive rationale for why Halcyon's "Outstanding" rating under Factor 1(b) (Manufacturing Readiness) justified paying $17,400,000 — or 4.82% — more than Whitmore's lower-priced proposal. Whitmore's evaluated price was $343,800,000, while Halcyon's evaluated price was $361,200,000. The GAO found that the SSDD merely restated the adjectival ratings assigned by the Source Selection Evaluation Board ("SSEB") without identifying specific technical benefits, discriminators, or qualitative advantages that warranted the price premium. The GAO concluded that the tradeoff analysis was a "mechanical comparison of adjectival ratings" that did not satisfy the requirement for a "reasoned, qualitative analysis" under FAR § 15.308 and well-established GAO precedent. This ground was sustained.
Ground 2 (Sustained — Materially Unequal Discussions). Whitmore contended that the Air Force conducted materially unequal discussions during the August 14–25, 2023 discussion period. The record demonstrated that the Air Force issued two Evaluation Notices ("ENs") to Whitmore — EN-WAL-001 and EN-WAL-002 — identifying weaknesses in Whitmore's Manufacturing Readiness subfactor. However, the Air Force failed to issue any ENs to Halcyon regarding its lower-rated Supply Chain Risk Management subfactor, which received a rating of "Acceptable." The GAO found this disparity to be particularly troubling in light of internal SSEB evaluation notes that identified a "significant concern" regarding Halcyon's reliance on a sole-source foreign subcontractor, Meridian Semiconductor GmbH, for critical gallium arsenide sensor wafers used in the IRCM pod assemblies. Despite this documented concern, the Air Force did not raise the issue with Halcyon during discussions, nor did it issue an EN that would have afforded Halcyon the opportunity to address the concern and potentially strengthen its proposal. The GAO held that the failure to raise this documented concern with Halcyon, while simultaneously raising analogous manufacturing and supply chain concerns with Whitmore, constituted materially unequal discussions in violation of FAR § 15.306(d)(1). This ground was sustained.
Ground 3 (Denied — Organizational Conflict of Interest). Whitmore alleged that Halcyon benefited from an impaired objectivity organizational conflict of interest ("OCI") arising from the prior performance by Halcyon Analytical Services LLC — a wholly-owned subsidiary of Halcyon Defense Systems Inc. — of an Analysis of Alternatives ("AoA") study under Contract No. FA8222-21-C-0018, valued at $2,300,000. Whitmore alleged that the AoA study provided Halcyon with non-public, competitively useful information regarding the Air Force's requirements and evaluation criteria for the IRCM pod assembly procurement. After conducting a telephonic hearing on this ground on January 4, 2024, the GAO found insufficient evidence to establish that the AoA study conferred an unfair competitive advantage on Halcyon. The GAO noted that the Air Force had taken adequate mitigation measures, including establishing an OCI mitigation plan and firewalling the AoA study team from the Halcyon proposal team. This ground was denied.
Ground 4 (Not Reached — Labor Rate Realism). Whitmore challenged the Air Force's cost/price realism analysis as applied to Halcyon's proposed labor rates, contending that certain rates were unrealistically low and should have triggered a realism adjustment. Because the GAO sustained the protest on Grounds 1 and 2 and recommended reevaluation and a new source selection decision, the GAO concluded that Ground 4 was rendered academic and declined to reach the merits of this ground.
D. GAO Recommendations
Based on its sustain of Grounds 1 and 2, the GAO issued the following recommendations:
1.  The Air Force should reevaluate proposals under Evaluation Factors 1 (Technical/Management Approach, including all subfactors) and 3 (Past Performance) in accordance with the solicitation criteria and applicable regulations.
2.  Following reevaluation, the Air Force should conduct a new best-value tradeoff analysis with fully documented rationale that identifies specific technical benefits and discriminators justifying any price premium, in compliance with FAR § 15.308.
3.  If, following the reevaluation and new tradeoff analysis, Whitmore's proposal is selected for award, the Air Force should terminate Halcyon's contract, Contract No. FA8222-23-D-0193, for the convenience of the Government and make award to Whitmore.
4.  The Air Force should reimburse Whitmore its costs of filing and pursuing the protest, including reasonable attorneys' fees. 4 C.F.R. § 21.8(d)(1).
5.  The Air Force should complete the corrective action within sixty (60) days of the date of the GAO's decision, i.e., no later than March 29, 2024.
E. Key Procedural Milestones Relevant to Cost Claim
The following procedural milestones are relevant to an understanding of the work performed by Whitmore's counsel and the reasonableness of the fees and costs claimed:
•  October 12, 2023: Protective Order issued by the GAO, governing access to source-selection-sensitive and proprietary information. Counsel for Whitmore prepared and filed the required acknowledgments and complied with all protective order requirements throughout the proceedings, including the handling of ITAR-controlled and classified-at-origin technical data.
•  October 30, 2023: The Air Force filed the Agency Report, consisting of forty-seven (47) tabs of supporting documentation, including the solicitation, all amendments, evaluation criteria, the SSEB Report, SSDD, proposal excerpts, cost/price evaluation documentation, OCI mitigation plan, discussion records, and evaluation notices. Review and analysis of this voluminous record constituted a significant portion of counsel's work.
•  November 6, 2023: Whitmore, through counsel, filed a Request for Partial Document Production, seeking production of AR Tabs 22, 23, and 28, which had been withheld or redacted by the Air Force on deliberative process and/or attorney-client privilege grounds. Whitmore contended that these tabs contained material evaluation records necessary to assess the merits of the protest.
•  November 9, 2023: The GAO, after receiving briefing from all parties, ordered production of AR Tabs 22 and 28 (upholding the withholding of Tab 23 on attorney-client privilege grounds). Tab 22 contained internal SSEB evaluator worksheets, and Tab 28 contained the discussion memorandum documenting the decision to issue ENs to Whitmore but not to Halcyon. These documents proved critical to the GAO's sustain on Ground 2.
•  November 17, 2023: Whitmore, through counsel, filed its Comments on the Agency Report, a comprehensive brief addressing all four protest grounds, accompanied by supporting declarations and expert analysis.
•  November 22, 2023: The intervenor, Halcyon, through its counsel at Kessler, Pratt & Dunaway LLP, filed its Comments on the Agency Report, opposing Whitmore's protest on all grounds.
•  November 27, 2023: The Air Force filed a Supplemental Agency Report, providing additional documentation and narrative response to issues raised in Whitmore's Comments.
•  December 4, 2023: Whitmore, through counsel, filed Supplemental Comments responding to the Air Force's Supplemental Agency Report and to the intervenor's Comments.
•  December 8, 2023: The GAO conducted an outcome prediction alternative dispute resolution ("ADR") conference call, facilitated by Senior Attorney Angela M. Palermino of the GAO Procurement Law Division. During the ADR conference, the GAO attorney shared the office's preliminary assessment of the likely outcome of the protest. The parties declined to reach a resolution through the ADR process, and the protest proceeded to a decision on the merits.
•  January 4, 2024: The GAO conducted a telephonic hearing on Ground 3 (OCI allegation). Three witnesses testified: Donald R. Stokes, Vice President of Government Contracts for Whitmore Aerospace LLC; Greta M. Holloway, Vice President of Business Development for Halcyon Defense Systems Inc.; and Colonel Diane W. Prescott, USAF, the Contracting Officer. Counsel for all parties participated in direct and cross-examination. The hearing required significant advance preparation, including the preparation of pre-hearing briefs, witness outlines, documentary exhibits, and anticipated cross-examination.
•  January 29, 2024: The GAO issued its decision sustaining the protest on Grounds 1 and 2 and denying the protest on Ground 3 (Ground 4 not reached). The decision recommended corrective action, including reimbursement of Whitmore's protest costs.
III. PROTESTER'S COUNSEL AND ENGAGEMENT TERMS
Whitmore retained Calderwood & Harkness LLP to represent it in connection with the GAO protest at issue in this claim. The engagement was opened under Calderwood & Harkness engagement number 1019-00003. The engagement was formalized by an engagement letter dated September 26, 2023, a copy of which is attached hereto as Exhibit A.
The responsible partner for the engagement is Claudia Merritt, a partner in the firm's Government Contracts practice group, who served as lead counsel throughout the protest proceedings and was the signatory on all filings and correspondence with the GAO. The billing partner is Ian Blackwood, also a partner in the Government Contracts practice group, who provided strategic oversight, participated in key client communications, reviewed all major filings prior to submission, and participated in the January 4, 2024 hearing.
The engagement team consisted of the following timekeepers, each of whom contributed to the prosecution of the protest:
Partners:
•  Claudia Merritt — Lead counsel; responsible for overall case strategy, client communications, all GAO filings and correspondence, cross-examination of witnesses at the January 4, 2024 hearing, and participation in the December 8, 2023 ADR conference call.
•  Ian Blackwood — Billing partner; strategic oversight, review of all major filings, participation in hearing preparation and the January 4, 2024 hearing, and client briefings.
•  Blended billing rate: $695.00 per hour.
Of Counsel:
•  Lt. Col. (Ret.) Nathan Yardley — Of Counsel in the firm's Government Contracts practice. Lt. Col. (Ret.) Yardley is a retired Air Force Judge Advocate with extensive experience in government contracts procurement, source selection procedures, and GAO protest litigation. He provided substantive analysis of all four protest grounds, drafted significant portions of the Comments on Agency Report and Supplemental Comments, assisted with hearing preparation, and advised on military procurement procedures and FAR/DFARS regulatory requirements.
•  Billing rate: $475.00 per hour.
Senior Associate:
•  Megan Zhao — Senior Associate in the firm's Litigation practice, with a focus on government contracts disputes. Ms. Zhao was responsible for hearing preparation, including witness outlines and documentary exhibits, drafting of the initial protest filing, substantial drafting contributions to the Comments on Agency Report, analysis of the forty-seven-tab Agency Report, and coordination with the expert consultant.
•  Billing rate: $385.00 per hour.
Associates:
•  Alan Burke — Lead Associate; practice areas include Privacy & Data Security and ITAR/EAR compliance. Mr. Burke conducted extensive legal research, performed document review of the Agency Report (with particular attention to ITAR-controlled and export-sensitive materials), drafted sections of the protest and comments addressing the OCI ground, and provided analysis of the ITAR/export compliance overlay relevant to the gallium arsenide sensor wafer supply chain issues central to Ground 2.
•  Sara Hendricks — Working Associate; practice areas include Privacy & Data Security. Ms. Hendricks provided drafting support, assisted with document review and organization, prepared exhibit binders and filing packages, assisted with legal research, and supported hearing preparation logistics.
•  Blended billing rate: $315.00 per hour.
The firm agreed to a voluntary fee cap of $425,000 (fees only, exclusive of costs) for the entirety of the engagement, as reflected in the engagement letter attached as Exhibit A. The total attorneys' fees claimed herein, $347,216.50, fall well below this voluntary cap.
All billing rates set forth above are blended hourly rates as established in the September 26, 2023 engagement letter. These rates are consistent with, and in many cases below, the prevailing market rates for government contracts bid protest litigation in the Washington, D.C. metropolitan area. As the GAO and the Court of Federal Claims have consistently recognized, rates for experienced government contracts attorneys in the Washington, D.C. area typically range from $300 to $850 per hour for partners, $250 to $550 per hour for of counsel attorneys, and $200 to $450 per hour for associates, depending on experience and the complexity of the matter. See, e.g., Ashbury Partners LLC, B-409585.2, 2015 CPD ¶ 3; Jacobs Tech. Inc., B-413389.2, 2017 CPD ¶ 113. The rates charged in this matter fall squarely within these ranges and are reasonable under the circumstances.
IV. TOTAL CLAIM AMOUNT
The total amount of this certified claim for reimbursement of protest costs is as follows:
Each category is detailed in Sections V and VI below, with full supporting documentation provided in the accompanying exhibits.
V. ATTORNEYS' FEES — DETAILED BREAKDOWN
A. Summary by Timekeeper Category
The following table provides a summary of the attorneys' fees incurred, organized by timekeeper category:
Adjustments are set forth in Section V.B below, resulting in a final total of $347,216.50.
B. Adjustments
In preparing this claim, Whitmore's counsel conducted a thorough review of all time entries to identify and remove any non-compensable time, including entries reflecting purely administrative or clerical tasks, duplicative entries, and any time not directly attributable to the prosecution of the protest. The following adjustments have been applied:
1.  Removal of Non-Compensable Administrative Time. A total of 0.1 hours of non-compensable administrative time at the associate level has been identified and removed. This entry reflected time spent by an associate on internal filing and docketing tasks that are properly classified as clerical rather than legal work. The reduction is calculated as 0.1 hours × $315.00/hour = $31.50 removed.
2.  Adjusted Associate Subtotal. After removal of the 0.1 hours of administrative time, the associate subtotal is adjusted from $102,217.50 to $102,186.00.
3.  Rounding Corrections. A further adjustment of $4.50 has been applied to account for cumulative rounding corrections of 0.015 hours across multiple timekeepers. These rounding discrepancies arose from the conversion of the firm's six-minute billing increment entries to decimal format for purposes of this submission. The net effect of these rounding corrections, applied pro rata across timekeeper categories, results in a minor downward adjustment to the total.
4.  Final Recalculated Total. The recalculated subtotals are as follows:
•  Partners: $99,037.50
•  Of Counsel: $88,825.00
•  Senior Associate: $57,172.50
•  Associates (adjusted): $102,186.00
•  Subtotal: $347,221.00
•  Less rounding corrections: ($4.50)
•  Final Attorneys' Fees Total: $347,216.50
C. Reasonableness of Hours
The total hours expended across all timekeepers are 802.5 hours (pre-adjustment). Whitmore submits that these hours are reasonable and necessary in light of the following factors:
Complexity of the Procurement. The underlying procurement involved an IDIQ contract with a total ceiling value of $387,500,000 for advanced IRCM pod assemblies — a technically complex, safety-critical, and strategically significant defense system. The evaluation involved multiple technical factors and subfactors, detailed cost/price analysis, manufacturing readiness assessments, supply chain risk management evaluations, and past performance analysis. The complexity of the procurement required counsel to develop and maintain a deep understanding of the underlying technology, the industrial base, and the specialized regulatory framework governing the procurement.
Number and Complexity of Protest Grounds. The protest raised four substantive grounds, each of which required independent factual investigation, legal research, and briefing. Ground 1 required detailed analysis of the SSDD and SSEB report to demonstrate the inadequacy of the tradeoff rationale. Ground 2 required painstaking comparison of the discussion records for both offerors, analysis of the SSEB evaluation notes, and development of the legal framework for materially unequal discussions. Ground 3 required investigation of the intervenor's corporate structure, the scope of the prior AoA study, and the adequacy of the OCI mitigation plan. Ground 4 required analysis of the cost/price realism methodology and the reasonableness of the intervenor's proposed labor rates.
Voluminous Agency Report. The Agency Report consisted of forty-seven (47) tabs of documentation, totaling approximately 4,200 pages. Review, analysis, and indexing of this record required substantial associate and senior associate time.
Document Production Motion Practice. The Request for Partial Document Production filed on November 6, 2023, and the GAO's subsequent order on November 9, 2023, required additional briefing and legal research regarding the deliberative process privilege and its application to source selection records. The production of AR Tabs 22 and 28, while ultimately favorable to Whitmore's position, required supplemental analysis and integration of the newly produced materials into the existing briefing framework.
Multiple Rounds of Briefing. The protest involved the preparation and filing of the initial protest, Comments on the Agency Report, Supplemental Comments on the Supplemental Agency Report, pre-hearing briefs, and post-hearing submissions. Each filing required independent legal research, factual analysis, drafting, internal review, and client coordination.
GAO Telephonic Hearing. The January 4, 2024 telephonic hearing on Ground 3 required extensive preparation, including the preparation of direct examination outlines for Mr. Stokes, anticipated cross-examination of the intervenor's and agency's witnesses, identification and organization of documentary hearing exhibits, preparation of a pre-hearing brief, and coordination with the client regarding testimony. The hearing itself involved the examination and cross-examination of three witnesses and lasted approximately four hours.
ITAR/Export Compliance Overlay. The subject matter of the protest — advanced IRCM pod assemblies incorporating gallium arsenide sensor wafers — implicates the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Parts 120–130, and the Export Administration Regulations ("EAR"), 15 C.F.R. Parts 730–774. Counsel was required to ensure compliance with these regulatory frameworks in the handling of source-selection-sensitive materials, particularly those relating to Halcyon's foreign subcontractor, Meridian Semiconductor GmbH. This required specialized associate time for ITAR/EAR compliance review.
Classified/Sensitive Information Handling. The Protective Order issued on October 12, 2023 imposed strict requirements on the handling, storage, and disposal of protected information. Compliance with these requirements, including the preparation of acknowledgment forms, the establishment of internal access controls, and the secure handling of ITAR-sensitive materials, required additional attorney time.
Whitmore's counsel has affirmatively reviewed all time entries and removed any entries reflecting non-compensable time, including administrative, clerical, or duplicative time, prior to submission of this claim. The time entries submitted herein reflect only compensable legal work directly attributable to the prosecution of the protest in B-422187; B-422187.2.
The allocation of work among the engagement team was appropriate and efficient. Partner time reflects strategic oversight, high-level client communication, review and finalization of all filings, key decision-making regarding case strategy, and active participation in the hearing and ADR proceedings. Of Counsel time reflects the substantive application of government contracts expertise and protest procedure experience, including significant drafting contributions and regulatory analysis. Senior Associate time reflects hearing preparation, primary drafting responsibility for certain filings, and detailed analysis of the Agency Report. Associate time reflects legal research, document review, ITAR/export compliance analysis, exhibit preparation, and drafting support tasks that were appropriately delegated to attorneys billing at lower rates.
D. Reasonableness of Rates
The billing rates set forth in this claim are the blended hourly rates agreed upon between Calderwood & Harkness LLP and Whitmore Aerospace LLC in the engagement letter dated September 26, 2023. As noted above, these rates are at or below the prevailing market rates for government contracts bid protest work in the Washington, D.C. metropolitan area.
The reasonableness of counsel's rates is supported by the following:
•  The rates are blended rates that do not differentiate based on individual timekeeper seniority within a category. In the case of the partners, the blended rate of $695.00 per hour is below the standard rack rate of at least one of the two partners involved. In the case of the associates, the blended rate of $315.00 per hour reflects a rate at the lower end of the range for associates with comparable experience in the Washington, D.C. government contracts market.
•  A copy of Calderwood & Harkness's standard rate schedule, together with the executed engagement letter, is attached as Exhibit A. The rate schedule demonstrates that the blended rates charged in this engagement are below the firm's standard rates for attorneys of comparable experience and seniority.
•  The rates are consistent with rates approved by the GAO and the Court of Federal Claims in analogous protest cost reimbursement proceedings involving comparable levels of complexity and similar fee structures.
VI. PROTEST-RELATED COSTS — DETAILED BREAKDOWN
In addition to attorneys' fees, Whitmore incurred the following protest-related costs directly attributable to the prosecution of the protest in B-422187; B-422187.2:
All costs set forth above are directly and exclusively attributable to the prosecution of the protest in B-422187; B-422187.2. No costs related to other matters, other clients, or the underlying procurement have been included. Whitmore has not sought reimbursement for any internal administrative costs, overhead, or opportunity costs.
Receipts, invoices, and supporting documentation for each cost item are attached hereto as Exhibit B, organized as follows:
•  Exhibit B-1: Ridgeline Consulting Group LLC invoice dated November 14, 2023 ($8,200.00)
•  Exhibit B-2: Transcript service invoice dated January 11, 2024 ($4,312.00)
•  Exhibit B-3: Travel expense receipts — Washington, D.C. to Dayton, Ohio, November 2–4, 2023 ($3,881.22)
•  Exhibit B-4: Electronic filing and reproduction invoices ($1,650.00)
•  Exhibit B-5: Courier and overnight delivery receipts ($700.00)
VII. SUPPORTING DOCUMENTATION INDEX
The following exhibits are attached to and incorporated by reference in this claim submission:
All exhibits are submitted as true and correct copies. The time records in Exhibit C have been reviewed for completeness and accuracy, and all non-compensable entries have been removed prior to submission.
VIII. CERTIFICATION
The undersigned, Donald R. Stokes, Vice President, Government Contracts, Whitmore Aerospace LLC, hereby certifies as follows in connection with the claim for reimbursement of protest costs set forth in this submission:
1.  I am the Vice President of Government Contracts for Whitmore Aerospace LLC, a Virginia limited liability company, and I am duly authorized to submit this claim on behalf of Whitmore Aerospace LLC. My authorization to act in this capacity has been confirmed by the Chief Executive Officer of Whitmore Aerospace LLC, Marcus J. Whitmore.
2.  This claim is made in good faith. The amounts set forth herein represent actual costs and attorneys' fees incurred by Whitmore Aerospace LLC in connection with the prosecution of its bid protest before the U.S. Government Accountability Office in the matter of Whitmore Aerospace LLC, B-422187; B-422187.2.
3.  The supporting data provided with this claim, including all exhibits, time records, invoices, receipts, and other documentation, are accurate and complete to the best of my knowledge and belief. I have reviewed the supporting data and have made reasonable inquiry to verify its accuracy.
4.  The total amount requested in this claim, $365,959.72, accurately reflects the costs and attorneys' fees incurred by Whitmore Aerospace LLC in connection with the protest. This amount has not been inflated, and no duplicative, administrative, or non-compensable charges have been knowingly included.
5.  This certification is made under penalty of perjury pursuant to 28 U.S.C. § 1746. I declare under penalty of perjury that the foregoing is true and correct.
WHITMORE AEROSPACE LLC
By: ________
Name: Donald R. Stokes
Title: Vice President, Government Contracts
Address: 2400 Dominion Ridge Parkway, Suite 800
Herndon, Virginia 20171
Date: February 7, 2024
IX. REQUEST FOR ACTION
Based on the foregoing, Whitmore Aerospace LLC respectfully requests that the Contracting Officer process and pay this certified claim in the amount of $365,959.72 in accordance with the GAO's recommendation in Whitmore Aerospace LLC, B-422187; B-422187.2, dated January 29, 2024. This amount is comprised of $347,216.50 in reasonable attorneys' fees and $18,743.22 in protest-related costs, each as detailed above and supported by the accompanying exhibits.
Whitmore notes that the GAO's decision recommended that the Air Force complete all corrective action, including payment of protest costs, within sixty (60) days of the date of the decision, i.e., no later than March 29, 2024. Whitmore respectfully requests that the Contracting Officer process this claim on a timeline consistent with that recommendation.
Whitmore further requests that the Contracting Officer acknowledge receipt of this claim and provide an estimated timeline for review and payment. Whitmore's counsel stands ready to provide any additional information, clarification, or documentation that the Contracting Officer may require to facilitate prompt adjudication of this claim.
Finally, Whitmore Aerospace LLC reserves all rights under applicable law to pursue this claim before the appropriate forum, including but not limited to the Armed Services Board of Contract Appeals or the United States Court of Federal Claims, in the event that payment is not made within a reasonable time or the claim is denied in whole or in part. See 4 C.F.R. § 21.8(e); FAR 33.104(h). This reservation of rights is stated for the record and does not reflect any expectation that such action will be necessary; to the contrary, Whitmore appreciates the Air Force's prompt notification of its intent to comply with the GAO's recommendations and looks forward to a cooperative resolution of this claim.
X. CLOSING
We appreciate the Contracting Officer's attention to this matter and look forward to the prompt resolution of this claim. Should you have any questions or require additional information, please do not hesitate to contact the undersigned at (202) 555-8412 or cmerritt@calderwoodharkness.com.
Respectfully submitted on behalf of Whitmore Aerospace LLC
CALDERWOOD & HARKNESS LLP
By: ________
Claudia Merritt Partner Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-8412
Email: cmerritt@calderwoodharkness.com
Engagement No.: 1019-00003
Date: February 7, 2024
cc (via electronic mail and first-class mail):
Marcus J. Whitmore, Chief Executive Officer, Whitmore Aerospace LLC
Donald R. Stokes, Vice President, Government Contracts, Whitmore Aerospace LLC
Patricia "Trish" Langford, Chief Financial Officer, Whitmore Aerospace LLC
Captain Lucas M. Hargrove, USAF, JAG, Trial Attorney, Department of the Air Force
Miriam T. Castellano, Senior Attorney, Office of the General Counsel (SAF/GCQ), Department of the Air Force
Vincent R. Talmadge, Contract Specialist, AFLCMC Sensors Directorate, Wright-Patterson Air Force Base, Ohio
Theodore J. Dunaway, Partner, Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102 (counsel for intervenor Halcyon Defense Systems Inc.)
GAO Procurement Law Division (for case file B-422187; B-422187.2), U.S. Government Accountability Office, 441 G Street NW, Washington, D.C. 20548
Enclosures: Exhibits A through E (as described in Section VII)
Category | Amount
Attorneys' Fees | $347,216.50
Protest-Related Costs | $18,743.22
Total Protest Cost Claim | $365,959.72
Timekeeper Category | Timekeepers | Hours | Rate (per hour) | Subtotal
Partners | Claudia Merritt, Ian Blackwood | 142.5 | $695.00 | $99,037.50
Of Counsel | Lt. Col. (Ret.) Nathan Yardley | 187.0 | $475.00 | $88,825.00
Senior Associate | Megan Zhao | 148.5 | $385.00 | $57,172.50
Associates | Alan Burke, Sara Hendricks | 324.5 | $315.00 | $102,217.50 (pre-adjustment)
Subtotal (Pre-Adjustment) | 802.5 | $347,252.50
Cost Category | Payee / Description | Amount
Expert Consultant | Ridgeline Consulting Group LLC (Janet K. Overmeyer, Principal; 4501 Fairfax Drive, Suite 200, Arlington, VA 22203) — expert analysis and declaration regarding Manufacturing Readiness evaluation methodology and the reasonableness of the SSEB's assessment of the offerors' manufacturing readiness levels | $8,200.00
Hearing/Deposition Transcripts | Transcript costs for January 4, 2024 GAO telephonic hearing on Ground 3 (OCI allegation), including real-time transcript service and certified copies | $4,312.00
Travel | Washington, D.C. to Dayton, Ohio for on-site document inspection of source-selection-sensitive materials at Wright-Patterson Air Force Base (round-trip airfare for two attorneys, two nights lodging, ground transportation, and per diem meals, November 2–4, 2023) | $3,881.22
Electronic Filing and Reproduction | GAO electronic filing fees, document reproduction, and printing costs for filings, exhibit binders, and internal working copies of the 47-tab Agency Report | $1,650.00
Courier / Overnight Delivery | Severin Partners LLC Priority Overnight and local courier services for submission of time-sensitive filings, correspondence with the GAO, and delivery of protective-order-controlled materials | $700.00
Total Protest-Related Costs | $18,743.22
Exhibit | Description
Exhibit A | Engagement letter dated September 26, 2023, between Calderwood & Harkness LLP and Whitmore Aerospace LLC, including fee schedule, rate documentation, and voluntary fee cap agreement (Engagement No. 1019-00003)
Exhibit B | Receipts, invoices, and supporting documentation for protest-related costs ($18,743.22), organized as follows:
Exhibit B-1 | Ridgeline Consulting Group LLC invoice ($8,200.00)
Exhibit B-2 | Transcript service invoice ($4,312.00)
Exhibit B-3 | Travel expense receipts — D.C. to Dayton, OH ($3,881.22)
Exhibit B-4 | Electronic filing/reproduction invoices ($1,650.00)
Exhibit B-5 | Courier/delivery receipts ($700.00)
Exhibit C | Time records summary by timekeeper and month, in both PDF and accompanying Excel workbook format, showing date, timekeeper, hours, rate, narrative description of work performed, and calculated fees for each entry
Exhibit D | Copy of GAO decision, Whitmore Aerospace LLC, B-422187; B-422187.2, dated January 29, 2024
Exhibit E | Copy of Air Force notification of intent to comply with GAO recommendation, dated February 5, 2024