1019-00003 · Whitmore Aerospace LLC · Engagement

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MEMORANDUM

PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT

To: Claudia Merritt, Responsible Partner; Ian Blackwood, Billing Partner

From: Sara Hendricks, Associate, Privacy & Data Security

Date: September 25, 2023

Re: New Matter Conflict Check — Matter No. 1019-00003: Whitmore Aerospace LLC — GAO Bid Protest (B-422187)

Office: Calderwood & Harkness LLP, 1750 K Street NW, Suite 1100, Washington, D.C. 20006

I. Purpose

This memorandum documents the results of a comprehensive conflict of interest check conducted in connection with the proposed engagement of Whitmore Aerospace LLC ("Whitmore" or "WAL") as a new client of Calderwood & Harkness LLP. The proposed representation concerns a bid protest matter to be filed and prosecuted before the United States Government Accountability Office ("GAO"). This memorandum has been prepared pursuant to Calderwood & Harkness LLP's Firm Policy 4.1 (New Business Intake and Conflict of Interest Procedures) and is intended to satisfy the firm's obligations under Rule 1.7 and Rule 1.9 of the District of Columbia Rules of Professional Conduct, Rule 1.7 and Rule 1.9 of the Virginia Rules of Professional Conduct, and any other applicable rules of professional conduct governing the proposed engagement.

The conflict check was initiated on September 23, 2023, at the request of Claudia Merritt, Responsible Partner, following initial client contact with Donald R. Stokes, Vice President of Government Contracts at Whitmore Aerospace LLC. Mr. Stokes contacted Ms. Merritt on September 22, 2023, to discuss the possibility of engaging the firm to file a GAO bid protest on behalf of Whitmore. Ms. Merritt promptly submitted a new-matter intake request through the firm's conflicts management system on September 23, 2023, and this memorandum constitutes the formal written record of the resulting conflict analysis.

The proposed engagement involves filing and prosecuting a GAO bid protest challenging the U.S. Department of the Air Force's award of Contract No. FA8222-23-D-0193 to Halcyon Defense Systems Inc. ("Halcyon" or "HDS") under Solicitation No. FA8222-23-R-0087. The contract at issue is an indefinite-delivery/indefinite-quantity ("IDIQ") contract for advanced infrared countermeasure ("IRCM") pod assemblies, with a contract ceiling value of $387,500,000 and an anticipated period of performance of seven years (a five-year base period with two one-year option periods). The protest will be filed under the GAO's bid protest jurisdiction codified at 31 U.S.C. §§ 3551–3556, and the applicable procedural rules set forth at 4 C.F.R. Part 21. The anticipated GAO case number is B-422187; it is expected that a supplemental protest may also be filed and would be docketed as B-422187.2.

The Engagement Number assigned to this matter is 1019-00003. The voluntary fee cap for this engagement, as discussed with the prospective client, is $425,000.

II. Proposed Client Information

The following information has been gathered from the prospective client's initial intake materials, publicly available records (including the System for Award Management ("SAM.gov")), and information provided directly by Mr. Stokes during the initial client meeting.

Business Description. Whitmore Aerospace LLC is a Virginia-based aerospace and defense manufacturer specializing in directed infrared countermeasure ("DIRCM") subsystems, missile warning sensor assemblies, and electro-optical targeting pods for military aircraft platforms. The company holds a Top Secret facility security clearance ("FCL") under the National Industrial Security Program and maintains active contracts with the U.S. Department of Defense. Whitmore's prior IRCM contract performance includes Contract No. FA8222-19-C-0041, a firm-fixed-price contract valued at $92.4 million awarded in 2019 for infrared countermeasure pod subassemblies, which was performed from 2019 through 2022 and completed on schedule. The company has been in operation since 2006 and is wholly owned by Marcus J. Whitmore and members of the Whitmore family through a domestic holding entity. Whitmore is not publicly traded and is not a subsidiary or affiliate of any other entity registered in the firm's conflicts management database.

The prospective client does not currently have any existing relationship with Calderwood & Harkness LLP. No prior matters, engagements, or consultations between the firm and Whitmore or any of its principals have been identified. This would be the firm's first engagement for Whitmore Aerospace LLC.

III. Parties and Entities Searched

The following parties and entities were identified as relevant to the proposed engagement and were run through the firm's conflicts management system (Ridgeway Health IT, version 6.4.2). Each party is identified by name, its role in the matter, and the search terms used. The searches were designed to capture all known variations of each party's name, as well as the names of key individuals associated with each party, in order to maximize the likelihood of identifying any potential conflict.

A. Adverse Parties

1. Halcyon Defense Systems Inc. ("Halcyon" or "HDS")

Halcyon Defense Systems Inc. is the awardee of Contract No. FA8222-23-D-0193 under Solicitation No. FA8222-23-R-0087 and is the party whose contract award Whitmore seeks to challenge in the proposed GAO protest. Halcyon is anticipated to intervene in the protest pursuant to 4 C.F.R. § 21.0(b) and will therefore be the primary adverse party for purposes of this conflict analysis. As the awardee and anticipated intervenor, any current or prior client relationship between Calderwood & Harkness and Halcyon would present a direct conflict of interest under Rule 1.7 (concurrent client conflict) or Rule 1.9 (former client conflict), depending on the circumstances.

Search Terms Used: "Halcyon Defense," "Halcyon Defense Systems," "HDS," "Osterhaus," "Holloway," "Halcyon," "63-4821057," "3H9P6"

2. Halcyon Analytical Services LLC ("HAS")

Halcyon Analytical Services LLC is a wholly owned subsidiary of Halcyon Defense Systems Inc. HAS is relevant to the proposed protest because it performed an Analysis of Alternatives ("AoA") study under Contract No. FA8222-21-C-0018, valued at approximately $2.3 million, that is the subject of Ground 3 of the proposed protest. Ground 3 alleges that Halcyon Defense Systems Inc. possessed an impaired objectivity organizational conflict of interest ("OCI") because its affiliate, HAS, had previously performed the AoA study that influenced the requirements and evaluation criteria adopted in the solicitation at issue, and that the Air Force's OCI mitigation plan was inadequate. Because HAS is both a subsidiary of the primary adverse party and an entity whose conduct is directly at issue in the protest, it was treated as a separate search entry.

Search Terms Used: "Halcyon Analytical," "Halcyon Analytical Services," "HAS," "Halcyon Analytical Services LLC"

3. U.S. Department of the Air Force (Procuring Agency)

The U.S. Department of the Air Force is the procuring agency responsible for the contract award being challenged. The specific contracting activity is the Air Force Life Cycle Management Center ("AFLCMC"), Sensors Directorate, located at Wright-Patterson Air Force Base, Ohio 45433. In bid protest proceedings before the GAO, the procuring agency files an agency report and participates as a party to the proceedings.

Government agencies are generally not treated as "clients" for purposes of conflict of interest analysis under the Rules of Professional Conduct, as the United States Government is a single entity that cannot simultaneously be deemed a "client" of every law firm that has any representation involving a federal agency. However, under the firm's internal conflicts policy, all government entities are searched to identify any current representations adverse to the agency, any current representations on behalf of the specific contracting activity or office involved, and any former engagements that could give rise to a duty of loyalty or confidentiality concern. The search was conducted with these considerations in mind.

Search Terms Used: "Air Force," "Department of the Air Force," "AFLCMC," "Air Force Life Cycle Management Center," "Sensors Directorate," "Prescott," "Jeffcoat," "Talmadge," "Fenn," "Wright-Patterson," "SAF/GCQ"

B. Other Offerors / Interested Parties

4. Marlowe Asset Management Electro-Optics Corp.

Marlowe Asset Management Electro-Optics Corp. was the third offeror that submitted a proposal in response to Solicitation No. FA8222-23-R-0087. Marlowe Asset Management was eliminated from the competitive range on or about August 3, 2023, having received a "Marginal" adjectival rating under Factor 1 (Technical Approach) and having submitted an evaluated price of $398.6 million, which exceeded the government's independent estimate. Marlowe Asset Management did not protest its elimination from the competitive range within the applicable filing deadlines under 4 C.F.R. § 21.2, and it is not anticipated that Marlowe Asset Management will participate in the protest as an interested party. Nevertheless, as an entity with a potential interest in the outcome of the protest, Marlowe Asset Management was included in the conflict search as a precautionary measure.

Search Terms Used: "Marlowe Asset Management Electro-Optics," "Marlowe Asset Management EO," "Marlowe Asset Management," "Pemberton Investors"

C. Opposing Counsel

5. Kessler, Pratt & Dunaway LLP ("KPD")

Kessler, Pratt & Dunaway LLP is anticipated to serve as counsel for Halcyon Defense Systems Inc. in the bid protest proceeding. KPD is a mid-size government contracts litigation boutique with offices in the Tysons, Virginia area. Based on preliminary communications and publicly available information, the firm understands that Theodore "Ted" J. Dunaway will serve as lead partner and Rachel N. Sorensen as the working associate on the Halcyon defense team. While opposing counsel firms are not themselves "clients" or "adverse parties" in the traditional conflicts sense, the firm's policy requires a search of opposing counsel to identify any prior co-counsel arrangements, joint representations, referral relationships, or personal relationships involving the engagement team that could give rise to an appearance of impropriety or a conflict of interest.

Search Terms Used: "Kessler Pratt," "Kessler, Pratt & Dunaway," "KPD," "Dunaway," "Sorensen," "Ted Dunaway," "Rachel Sorensen"

6. Agency Counsel — Office of the General Counsel, Department of the Air Force

The Department of the Air Force will be represented in the bid protest proceeding by attorneys from the Office of the General Counsel (SAF/GCQ). Based on information available at the time of this conflict check, the anticipated agency counsel include the following individuals:

Search Terms Used: "Hargrove," "Castellano," "SAF/GCQ," "Lucas Hargrove," "Miriam Castellano"

D. Subcontractors and Affiliates of Parties

7. Meridian Semiconductor GmbH

Meridian Semiconductor GmbH is a German limited liability company (Gesellschaft mit beschränkter Haftung) headquartered in Dresden, Germany. Meridian serves as Halcyon's sole-source supplier of gallium arsenide ("GaAs") sensor wafers, which are a critical component in the IRCM pod assemblies at issue in the solicitation. Meridian is relevant to the proposed protest because Ground 2 of the anticipated protest alleges that the Air Force conducted unequal discussions with respect to supply chain risk, specifically that the Air Force engaged in discussions with Whitmore regarding the availability and lead times for GaAs sensor wafers but failed to conduct equivalent discussions with Halcyon regarding its reliance on Meridian as a sole-source foreign supplier. Any current or prior client relationship with Meridian could present a conflict or complicate the firm's ability to develop arguments adverse to Meridian's reliability or capacity.

Search Terms Used: "Meridian Semiconductor," "Meridian GmbH," "Meridian Semi," "Meridian Dresden"

8. Pinnacle Precision Manufacturing Inc.

Pinnacle Precision Manufacturing Inc. is an Ohio corporation that serves as Whitmore's key subcontractor for the proposed IRCM pod design. Pinnacle manufactures machined housings and gimbal assemblies that are integral to Whitmore's technical approach. Pinnacle holds a Secret-level facility security clearance, which it has maintained since 2014. As a subcontractor to the prospective client, Pinnacle's interests are aligned with Whitmore's interests in this matter; however, the firm's policy requires a search of significant subcontractors to ensure that no adverse relationship exists that could impair the firm's ability to represent the protester.

Search Terms Used: "Pinnacle Precision," "Pinnacle Manufacturing," "Pinnacle Precision Manufacturing"

E. Consultants and Third-Party Service Providers

9. Ridgeline Consulting Group LLC

Ridgeline Consulting Group LLC is a Virginia limited liability company that served as Whitmore's proposal consultant during the preparation and submission of Whitmore's technical and management proposal volumes in response to Solicitation No. FA8222-23-R-0087. Ridgeline's principal, Janet K. Overmeyer, is expected to provide an expert declaration in support of the protest, likely addressing the technical evaluation findings and any alleged evaluation errors. As a consultant whose interests are aligned with the prospective client and who is expected to serve as a fact or expert witness in the proceeding, Ridgeline is included in the conflict search primarily to confirm the absence of any adverse relationship.

Search Terms Used: "Ridgeline Consulting," "Ridgeline Group," "Ridgeline Consulting Group," "Overmeyer," "Janet Overmeyer"

10. Clearwater Surety Corporation

Clearwater Surety Corporation is an Illinois corporation that issued the bid guarantee (Standard Form 28) in connection with Whitmore's proposal under the solicitation. While the surety's role in the protest itself is limited, the firm's policy requires a search of surety companies and financial institutions associated with the prospective client's bid to confirm the absence of any adverse relationship.

Search Terms Used: "Clearwater Surety," "Clearwater Surety Corporation," "Clearwater"

F. Key Individuals (Cross-Checked)

In addition to the entity-level searches described above, the following key individuals were individually cross-checked against the firm's conflicts management database, including the lateral hire portability lists and personnel databases. This cross-check was performed to identify any prior personal representations, family relationships, financial interests, or other personal connections between any engagement team member and any individual associated with an adverse or interested party.

• Marcus J. Whitmore — CEO, Whitmore Aerospace LLC

• Patricia "Trish" Langford — CFO, Whitmore Aerospace LLC

• Donald R. Stokes — VP, Government Contracts, Whitmore Aerospace LLC

• Raymond K. Osterhaus — CEO, Halcyon Defense Systems Inc.

• Greta M. Holloway — President, Sensor Solutions Division, Halcyon Defense Systems Inc.

• Colonel Diane W. Prescott — Contracting Officer, AFLCMC

• Brigadier General Harlan T. Jeffcoat — Source Selection Authority

• Theodore "Ted" J. Dunaway — Lead Partner, Kessler, Pratt & Dunaway LLP

• Janet K. Overmeyer — Principal, Ridgeline Consulting Group LLC

IV. Conflict Check Methodology

The conflict of interest searches described in this memorandum were conducted during the period of September 23 through September 25, 2023, using the firm's conflicts management database, Ridgeway Health IT (version 6.4.2), which is the centralized conflict detection system maintained by Calderwood & Harkness LLP in accordance with the firm's New Business Intake and Conflict of Interest Procedures (Firm Policy 4.1).

All searches were conducted using multiple search parameters for each party, including the party's full legal name, known abbreviations and aliases, trade names, names of key individuals affiliated with the party, Employer Identification Numbers ("EINs"), and CAGE codes (where available and applicable). Wildcard and fuzzy-match searching was employed to capture variant spellings, partial name matches, and potential data entry variations within the conflicts database.

The firm's conflicts management database encompasses the following categories of records:

(a) All current clients of the firm, regardless of practice group or office location;

(b) All former clients of the firm for which a matter was opened or engagement letter was executed within the preceding seven (7) years;

(c) All prospective clients for which a new matter inquiry was submitted within the preceding twenty-four (24) months, regardless of whether the engagement was ultimately accepted or declined;

(d) All lateral hire portability lists submitted by attorneys who joined the firm within the preceding five (5) years, reflecting prior client relationships brought to the firm for ongoing representation; and

(e) All parties identified as adverse parties, co-parties, or interested parties in any matter currently or previously maintained in the firm's matter management system.

In addition to the automated database searches, a supplemental manual review of the active matter list was conducted by Sara Hendricks. This manual review encompassed all currently open matters within the Government Contracts practice group, the Banking & Finance practice group, and the Privacy & Data Security practice group — the three practice groups from which attorneys have been drawn for the proposed engagement team. The purpose of the manual review was to identify any active representations that might not have been captured through the automated search process, including matters in which the searched parties might appear as non-party entities, transaction counterparties, or regulatory targets.

Finally, a targeted inquiry was conducted of all proposed engagement team members — Claudia Merritt, Ian Blackwood, Lt. Col. (Ret.) Nathan Yardley, Megan Zhao, Alan Burke, and Sara Hendricks — to determine whether any team member has had any prior personal representation of, or personal or financial relationship with, any of the parties or individuals identified in Section III of this memorandum. Each team member was contacted individually and asked to confirm the absence of any such relationship. The results of those confirmations are reported in Section VI below.

V. Search Results

The following summarizes the results of the conflict searches for each party and entity identified in Section III.

A. Halcyon Defense Systems Inc. / Halcyon Analytical Services LLC