internal-memo-protective-order-procedures.docx

1019-00003 · Whitmore Aerospace LLC · Protective Order

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT THIS MEMORANDUM IS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE. IT IS INTENDED SOLELY FOR THE USE OF THE NAMED RECIPIENTS AND MAY NOT BE DISCLOSED, COPIED, OR DISTRIBUTED WITHOUT THE PRIOR WRITTEN AUTHORIZATION OF THE RESPONSIBLE PARTNER.

CALDERWOOD & HARKNESS LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006

INTERNAL MEMORANDUM

Date: October 13, 2023

To:

Ian Blackwood, Partner (Banking & Finance) — Billing Partner Alan Burke, Associate (Privacy & Data Security) — Lead Associate Sara Hendricks, Associate (Privacy & Data Security) — Working Associate Lt. Col. (Ret.) Nathan Yardley, Of Counsel (Government Contracts) Megan Zhao, Senior Associate (Litigation)

From: Claudia Merritt, Partner (Government Contracts) — Responsible Partner

Re: Protective Order Handling Procedures — Whitmore Aerospace LLC, GAO Bid Protest, Case No. B-422187; B-422187.2 (Solicitation No. FA8222-23-R-0087)

Engagement No.: 1019-00003

I. Purpose and Background

This memorandum establishes binding internal procedures for all members of the Calderwood & Harkness LLP engagement team handling protected material in connection with the bid protest filed before the Government Accountability Office on behalf of our client, Whitmore Aerospace LLC ("Whitmore" or "WAL"). The protest challenges the United States Department of the Air Force's award of Contract No. FA8222-23-D-0193 — an indefinite-delivery/indefinite-quantity ("IDIQ") contract with a ceiling value of $387.5 million for the design, development, production, integration, and sustainment of advanced infrared countermeasure ("IRCM") pod assemblies — to Halcyon Defense Systems Inc. ("Halcyon" or "HDS"). The procurement was conducted under Solicitation No. FA8222-23-R-0087, issued by the Air Force Life Cycle Management Center ("AFLCMC"), Sensors Directorate, Wright-Patterson Air Force Base, Ohio.

On October 12, 2023, the GAO issued a standard Protective Order in B-422187; B-422187.2, governing access to proprietary and source selection sensitive information that will be contained in the Agency Report and related filings by the parties throughout the pendency of the protest. The Protective Order establishes the framework under which admitted counsel and authorized individuals may receive, review, and use information designated as protected by the agency, the awardee, or other participating parties. The Protective Order was issued by GAO Senior Attorney Angela M. Palermino of the Procurement Law Division.

The Agency Report is expected to be filed by the Air Force (AFLCMC, Sensors Directorate, Wright-Patterson AFB, OH) on or about October 30, 2023. This date reflects a partial grant of the agency's extension request: the Air Force originally requested a twenty (20) calendar-day extension of the standard filing deadline; the GAO, on October 18, 2023, granted a ten (10) calendar-day extension. Accordingly, the Agency Report production date has been adjusted from the originally calculated date of approximately October 20, 2023 to October 30, 2023. The firm should anticipate receiving a substantial volume of protected material on or shortly after that date, making the establishment of clear handling procedures particularly urgent.

Strict compliance with the Protective Order is not merely a matter of professional best practice — it is mandatory. The consequences of a violation are severe and potentially career-altering. Violations of GAO Protective Orders may result in sanctions imposed by the Comptroller General, including the potential dismissal of the protest itself. Beyond the immediate litigation consequences, violations may lead to disqualification of counsel from the proceeding and from future GAO matters, referral to state bar disciplinary authorities for investigation and potential disciplinary proceedings, and, in cases involving willful disclosure of confidential government information, criminal liability under 18 U.S.C. § 1905 (disclosure of confidential information generally) and related federal statutes. Each team member is expected to read, understand, and strictly adhere to every procedure set forth in this memorandum.

This memorandum should be read in conjunction with the Protective Order itself, a copy of which has been provided to all admitted counsel. Non-admitted team members may request a copy of the Protective Order from the undersigned, as the Protective Order itself is a public document and does not contain protected information.

II. Admitted Counsel and Technical Advisors

A. Admitted Counsel Under the Protective Order

The following Calderwood & Harkness LLP attorneys have executed Protective Order Acknowledgment forms, which were filed with the GAO on October 12, 2023, and are authorized to access, review, handle, and use protected material in connection with this matter:

Only the individuals listed above are authorized to access protected material. No other attorney, paralegal, legal assistant, secretary, or staff member of Calderwood & Harkness LLP may access protected material under any circumstances, unless such individual is subsequently admitted under the Protective Order through the filing and approval of a supplemental application with the GAO. Any request to add additional admitted counsel must be coordinated through Claudia Merritt and will require the preparation and filing of a formal application, notice to all parties, and approval by the GAO.

B. Non-Admitted Team Members

The following members of the Calderwood & Harkness engagement team are not admitted under the Protective Order and may not access, review, handle, or otherwise come into contact with any protected material under any circumstances:

The roles of Mr. Blackwood, Mr. Burke, and Ms. Hendricks on this engagement are limited to matters that do not require access to protected material. Mr. Blackwood's responsibilities as billing partner are purely administrative and financial. Mr. Burke and Ms. Hendricks may be called upon to provide legal research and drafting support on discrete legal issues arising in the protest (for example, research on standards of review, burden of proof, or procedural issues), but their work must be conducted without access to any protected material.

Non-admitted team members may receive sanitized, non-protected summaries or analyses prepared by admitted counsel. Such summaries must be clearly marked as derived from protected material and must not contain, quote, paraphrase, or describe in specific detail any protected information. In practice, this means that admitted counsel preparing such summaries must strip all identifying details regarding the content of protected documents — including specific technical approaches, pricing figures, evaluation scores, and evaluator commentary — and limit the summary to generalized characterizations sufficient to frame the legal issues on which non-admitted team members are providing support. If there is any question as to whether a particular summary or communication crosses the line from permissible generalization to impermissible disclosure, the admitted counsel member must consult with Claudia Merritt before sharing the material.

C. Technical Advisor

Janet K. Overmeyer, Principal, Ridgeline Consulting Group LLC, 4501 Fairfax Drive, Suite 200, Arlington, Virginia 22203, has been identified and admitted as a technical advisor under the Protective Order. Ms. Overmeyer executed the required Protective Order Acknowledgment form, which was filed with the GAO as part of the Protective Order Application submitted on October 12, 2023.

Ms. Overmeyer is a recognized expert in electro-optical and infrared ("EO/IR") countermeasure systems, with over twenty-five years of experience in the defense aerospace sector. Her role on this engagement is to provide technical analysis of the agency's evaluation of competing proposals and to assist admitted counsel in understanding and articulating the technical aspects of Whitmore's protest grounds.

Ms. Overmeyer's access to protected material is limited to the scope described in the Protective Order Application filed on October 12, 2023. Specifically, she may review technical and evaluation-related protected material, including the technical volumes of proposals, SSEB technical evaluation worksheets and consensus findings, Evaluation Notices issued during discussions, and related technical memoranda. Ms. Overmeyer may not access the pricing data of the awardee (Halcyon) or any other offeror (including Marlowe Asset Management Electro-Optics Corp.), unless specifically authorized by subsequent order of the GAO upon application by protester's counsel demonstrating the necessity of such access for the technical advisor's analysis. Any request to expand the scope of Ms. Overmeyer's access must be coordinated through Claudia Merritt.

All communications with Ms. Overmeyer regarding protected material must be conducted by admitted counsel. Non-admitted team members may not communicate with Ms. Overmeyer regarding any aspect of the protected material or the substance of her technical analysis that derives from protected material.

III. Definition of Protected Material

A. Categories of Protected Material

Protected material encompasses any information designated by the Air Force, by Halcyon Defense Systems Inc. (represented by the law firm of Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102, with lead partner Theodore "Ted" J. Dunaway serving as counsel of record), or by any other party as protected under the Protective Order issued October 12, 2023. The categories of information that may be designated as protected include, but are not limited to, the following:

1. Source Selection Evaluation Records. This category includes all materials generated by the Source Selection Evaluation Board ("SSEB") in connection with Solicitation No. FA8222-23-R-0087, including SSEB evaluation notes, consensus briefing slides and supporting documentation, individual evaluator worksheets and scoring sheets, and any memoranda or correspondence reflecting the deliberative process of the SSEB.

2. Source Selection Decision Document. The Source Selection Decision Document ("SSDD") prepared by the Source Selection Authority, Brigadier General Harlan T. Jeffcoat, USAF, documenting the rationale for the award decision, the comparative analysis of proposals, and the integrated assessment of the evaluation results across all evaluation factors.

3. Awardee Proposal Volumes. All volumes of Halcyon Defense Systems Inc.'s proposal submitted in response to the solicitation, including the Technical Volume, Management Volume, Past Performance Volume, and Pricing Volume, together with any revisions submitted during the discussion period.

4. Evaluation Notices. Evaluation Notices ("ENs") issued to offerors during the discussion period conducted between August 14 and August 25, 2023, including ENs issued to Halcyon, to Whitmore, and (to the extent included in the Agency Report) to any other offerors.

5. Internal Agency Memoranda. Internal agency memoranda and correspondence regarding competitive range determinations, discussion strategies, evaluation rationale, and other aspects of the source selection process, including any legal reviews conducted by the contracting officer's legal counsel or the procuring activity's Office of General Counsel.

6. Awardee Proprietary Pricing Data. Halcyon's proprietary pricing data, including the evaluated total price of $361,200,000 and all underlying cost and pricing breakdowns, basis of estimate information, forward pricing rate agreements, and subcontractor pricing data submitted with the proposal.

7. Awardee Subcontractor Information. Information regarding Halcyon's subcontractors and supply chain, including information concerning Meridian Semiconductor GmbH (Königsbrücker Straße 142, 01099 Dresden, Germany), which is identified in publicly available sources as Halcyon's sole-source supplier of gallium arsenide ("GaAs") sensor wafers used in the IRCM pod assemblies. Subcontractor teaming arrangements, workshare allocations, and subcontractor past performance information are all potentially protected.

8. Third Offeror Information. Information concerning the third offeror, Marlowe Asset Management Electro-Optics Corp. (900 Technology Court, Colorado Springs, Colorado 80919), which was eliminated from the competitive range on August 3, 2023, prior to the commencement of discussions. This information may include Marlowe Asset Management's proposal materials and the agency's evaluation thereof to the extent such materials are included in the Agency Report.

9. Other Designated Material. Any other material marked or designated as "PROTECTED" or otherwise subject to the Protective Order by the producing party, the GAO, or by agreement of the parties.

The foregoing list is illustrative, not exhaustive. The operative question is whether the producing party has designated the material as protected. If a document or piece of information bears a protective designation, it must be treated as protected material regardless of whether it falls neatly within one of the categories enumerated above.

B. Identification and Marking

Protected material produced in the Agency Report or in subsequent filings will be identified by the producing party's designation. The Air Force and intervenor's counsel have indicated that protected documents will typically be marked with the following legend, or words to substantially similar effect, on every page:

"PROTECTED — SUBJECT TO GAO PROTECTIVE ORDER — B-422187; B-422187.2"

All copies, notes, summaries, analyses, draft filings, internal memoranda, and other work product prepared by admitted counsel or the technical advisor that are derived from or contain protected material must bear the following legend prominently on the first page and, where practicable, on each subsequent page:

"CONTAINS PROTECTED INFORMATION — B-422187; B-422187.2 — FOR ADMITTED COUNSEL AND AUTHORIZED INDIVIDUALS ONLY"

This marking requirement applies to both physical and electronic documents. Admitted counsel must take affirmative steps to ensure that all such materials are properly marked before they are stored, transmitted, or filed. Failure to mark work product containing protected material creates an unacceptable risk of inadvertent disclosure and will be treated as a procedural violation subject to the consequences described in Section IX of this memorandum.

IV. Prohibition on Disclosure to Client Personnel

A. Absolute Bar on Client Access

This section addresses one of the most critical — and, in the undersigned's experience, most frequently misunderstood — aspects of GAO Protective Orders. The rule is absolute and admits of no exceptions:

No protected material may be shared with, disclosed to, or discussed with any personnel of Whitmore Aerospace LLC. This prohibition extends to every officer, director, employee, consultant (other than Ms. Overmeyer, whose access is governed by the terms of her admission as a technical advisor), independent contractor, agent, or other representative of Whitmore, including but not limited to:

• Marcus J. Whitmore — Chief Executive Officer

• Patricia "Trish" Langford — Chief Financial Officer

• Donald R. Stokes — Vice President, Government Contracts

• Any other Whitmore employee, officer, director, consultant, or agent

This prohibition is absolute and applies regardless of the individual's government security clearance level. The fact that Whitmore Aerospace LLC holds a Top Secret facility security clearance and that certain of its personnel hold individual security clearances at the Top Secret or Secret level is irrelevant for purposes of the Protective Order. Security clearances govern access to classified national security information and have no bearing on access to source selection sensitive and proprietary information protected under a GAO Protective Order, which serves an entirely distinct legal purpose — namely, preventing competitive harm to parties whose confidential business information has been produced in connection with the protest.

Similarly, the prohibition applies regardless of whether the Whitmore individual in question has executed a non-disclosure agreement with Whitmore, with the firm, or with any other entity. Non-disclosure agreements are private contractual arrangements and do not satisfy or override the requirements of a GAO Protective Order, which is an order issued by a tribunal with adjudicative authority over the proceeding.

Team members should be aware that the client, and particularly Mr. Stokes in his capacity as VP of Government Contracts, may from time to time press for more specific information regarding the contents of the Agency Report or the substance of Halcyon's proposal. These inquiries are understandable — the client has a significant business interest in the outcome of this protest and a natural desire to understand the basis of the evaluation. Nevertheless, any request for protected information must be firmly but respectfully declined, with an explanation that the Protective Order prohibits disclosure and that compliance is in the client's own interest, as a violation could jeopardize the protest itself.

B. Permissible Communications with the Client

The prohibition on disclosing protected material to the client does not mean that all substantive communication with the client must cease. Admitted counsel may and should maintain regular communication with Whitmore regarding the status, strategy, and progress of the protest. The following types of communications are permissible:

1. General Status Updates. Admitted counsel may inform the client of procedural developments, upcoming deadlines, and the general posture of the case.

2. General Assessment of Strengths and Weaknesses. Admitted counsel may discuss the general nature, strengths, and weaknesses of the protest grounds with client personnel, provided that no protected information is disclosed in the course of such discussions. For example, counsel may advise the client that a particular protest ground appears strong or weak based on the record, without revealing the specific protected evidence underlying that assessment.

3. General Description of Agency Report Contents. Counsel may describe the general categories of documents received in the Agency Report (e.g., "We have received the evaluation records, the SSDD, and the awardee's proposal volumes") and the general nature of the agency's legal arguments as set forth in the Memorandum of Law, but may not reveal specific protected content.

4. Information Already Known to the Client. Counsel may freely discuss information that is already known to the client through non-protected sources, including information disclosed to Whitmore during its enhanced post-award debriefing conducted on September 22, 2023, pursuant to 10 U.S.C. § 3304. The debriefing materials provided to Whitmore included the client's own evaluation ratings and certain comparative information regarding the evaluation. Information obtained through the debriefing is not subject to the Protective Order to the extent it was provided directly to the client by the agency.

In all client communications, admitted counsel must exercise careful judgment. If there is doubt as to whether a particular piece of information constitutes protected material, the information should not be shared with the client. When in doubt, consult with Claudia Merritt before making any disclosure.

V. Physical and Electronic Security Procedures

A. Physical Document Storage

The physical security of protected materials is essential to compliance with the Protective Order. The following procedures govern the storage and handling of all printed or hard-copy protected materials:

1. Designated Storage Location. All printed or hard-copy protected materials must be stored in the locked filing cabinet designated for matter 1019-00003 in the secure document room on the 11th floor of the firm's Washington, D.C. office, located at 1750 K Street NW, Suite 1100. The filing cabinet has been labeled with the matter number and a notice that its contents are subject to the GAO Protective Order. The secure document room is accessible only by keycard, and access is limited to firm personnel with authorization.

2. Locked at All Times. The filing cabinet is to remain locked at all times when not actively being accessed by admitted counsel. Keys to the filing cabinet have been distributed to each of the three admitted counsel members (Merritt, Yardley, Zhao). No duplicate keys may be created, and keys may not be loaned to any non-admitted individual. If a key is lost, Claudia Merritt must be notified immediately so that the lock can be replaced.

3. Sign-Out Log. A sign-out log must be maintained on the interior of the filing cabinet door. Each instance of access to the filing cabinet must be recorded in the log. The following information must be entered for each access:

(i) the name of the person accessing the material;

(ii) the date and time of access;

(iii) the Agency Report Tab number(s) or document identifier(s) reviewed; and

(iv) the date and time of return of the material to the filing cabinet.

4. No Removal from Secure Document Room. Protected material in hard-copy form may not be removed from the secure document room under any circumstances. Admitted counsel must review all physical materials on-site in the secure document room. Materials may not be taken to individual offices, conference rooms, or any other location within or outside the firm's offices.

B. Electronic Document Storage

The following procedures govern the electronic storage and handling of protected materials:

1. Designated Secure Matter Folder. Electronic copies of protected materials must be stored exclusively in the firm's designated secure matter folder on the document management system ("DMS"), which has been established under the matter number 1019-00003 with a subfolder labeled "PROTECTED — Protective Order Materials." This folder is accessible only by the three admitted counsel members (Merritt, Yardley, Zhao) and the technical advisor (Overmeyer, who has been granted access through the firm's secure external portal for outside consultants).

2. Access Restrictions. The secure matter folder must be access-restricted with permissions set by the firm's Information Technology ("IT") department. The IT department has been instructed to configure the folder with the most restrictive access settings available, limiting read, write, and download permissions to the four authorized individuals identified above. No broader team access is permitted. The IT department has confirmed that the access restrictions are in place as of October 13, 2023.

3. Prohibited Storage Locations. Protected electronic documents must not be stored on personal devices (including personal laptops, tablets, or smartphones), portable storage media (including USB flash drives, external hard drives, SD cards, or CDs), personal email accounts (including personal Northgate Software, Cascade Health IT, Ridgeline Technologies, or other web-based email services), or any cloud storage platform outside the firm's authorized systems (including personal Larkspur Technologies, Hollowell Health IT, Cobalt Ridge Systems, or Meridian Systems accounts). This prohibition applies regardless of whether the personal device or account is password-protected or encrypted.

4. Email Transmission. Email transmission of protected material is permitted only between admitted counsel using the firm's encrypted email system (Calderwood & Harkness's Ashgrove Software Exchange environment with TLS 1.3 encryption). Each email containing or attaching protected material must include the following legend in both the subject line and the body of the email:

"PROTECTED — SUBJECT TO GAO PROTECTIVE ORDER — B-422187; B-422187.2 — FOR ADMITTED COUNSEL ONLY"

Protected material may not be transmitted by email to the technical advisor, Ms. Overmeyer; instead, materials for Ms. Overmeyer's review must be uploaded to the secure external portal designated for her use. Email transmission of protected material to any person other than the admitted counsel members listed in Section II.A is strictly prohibited.

C. Printing and Reproduction

1. Designated Secure Printer. Printing of protected materials is limited to the secure printer located in the 11th-floor document room (Printer ID: DC-11-SEC-01). Admitted counsel must retrieve printouts immediately upon printing and may not leave them unattended at the printer or anywhere else. The secure printer has been configured to require badge authentication before releasing print jobs, providing an additional layer of security.

2. Minimization of Copies. Photocopying of protected materials is restricted and should be minimized to the greatest extent practicable. In general, admitted counsel should work from the original Agency Report copies or electronic versions rather than creating duplicates. When copies are necessary (for example, to facilitate annotation during review), any copies made must be logged in the sign-out log referenced in Section V.A.3 and stored in the same locked filing cabinet as the original materials.

3. Destruction of Excess Copies. Any copies of protected material that are no longer needed for immediate use should be destroyed by cross-cut shredding using the shredder located in the secure document room. Destruction of copies should be noted in the sign-out log.

VI. Work Product Derived from Protected Material

A. Briefs and Filings

All GAO filings that incorporate or reference protected material — including the protester's comments on the Agency Report, any supplemental comments, hearing briefs (if a hearing is convened), post-hearing briefs, and any other submissions to the GAO — must be prepared in two separate versions:

1. Protected Version. The protected version will be filed under the Protective Order and will be available only to admitted counsel of each party and to the GAO attorneys and decision-makers assigned to the case. The protected version will contain the full text of the filing, including all references to, quotations from, and analysis of protected material. The protected version must bear the protective legend specified in Section III.B on every page.

2. Redacted/Public Version. The redacted version will be prepared by removing all protected information from the filing and replacing it with appropriate redaction indicators (e.g., brackets with the notation "[DELETED]" or "[REDACTED]"). The redacted version is suitable for distribution to non-admitted team members and client personnel and will serve as the version of record for purposes of any subsequent public disclosure. The redacted version must be clearly labeled as "REDACTED VERSION — PROTECTED INFORMATION REMOVED."

Admitted counsel — specifically, Claudia Merritt, Lt. Col. (Ret.) Nathan Yardley, or Megan Zhao — must personally review both versions of every filing before it is submitted to the GAO. This review is a critical quality-control step to ensure that no protected material has been inadvertently included in the redacted version. The review must compare the two versions on a paragraph-by-paragraph basis, with particular attention to passages where protected and non-protected information are intermingled. The reviewing attorney must initial and date a printed copy of the redacted version to confirm that the review has been completed.

B. Internal Memoranda and Analysis

Internal memoranda analyzing the Agency Report, the awardee's proposal, the evaluation records, or any other protected materials — including the planned comprehensive Agency Report Analysis memorandum that will be prepared following receipt of the Agency Report — must be prepared exclusively by admitted counsel. Non-admitted team members may not draft, review, or edit any memorandum or analysis that contains protected information.

If non-admitted team members (specifically, Mr. Burke and Ms. Hendricks) are tasked with legal research or drafting in support of the protest — for example, research on the applicable standard of review for technical evaluations, the propriety of conducting discussions, or the legal requirements for competitive range determinations — they may receive issue-framing instructions from admitted counsel. Such instructions must be limited to identifying the legal question to be researched and may not include protected information as part of the factual context. For example, an admitted counsel member may instruct Mr. Burke to research the legal standard governing the agency's obligation to conduct meaningful discussions without revealing the specific content of the Evaluation Notices issued to Halcyon.

Any internal memorandum containing protected information must be marked with the protective legend specified in Section III.B and access-restricted on the DMS to the admitted counsel members only. Such memoranda must be stored in the designated secure matter folder described in Section V.B.

VII. Communication with Opposing Parties and GAO

A. Coordination with Agency Counsel

All communications with counsel for the contracting agency — Captain Lucas M. Hargrove, USAF, Judge Advocate General's Corps, and Miriam T. Castellano, Senior Attorney, Office of the General Counsel of the Department of the Air Force, Acquisition and Fiscal Law Division (SAF/GCQ) — regarding any aspect of the protected material must be conducted exclusively by admitted counsel. Non-admitted team members may not participate in calls, meetings, or email exchanges with agency counsel that concern or may concern protected material.

This restriction applies to both substantive communications (e.g., discussions regarding the adequacy of the Agency Report, requests for supplemental document production, or disputes over protective designations) and logistical communications (e.g., scheduling, format of document production, or coordination of filing deadlines) to the extent that such logistical communications may involve references to protected material.

B. Coordination with Intervenor's Counsel

Communications with counsel for the intervenor, Halcyon Defense Systems Inc. — specifically, Theodore J. Dunaway and Rachel N. Sorensen of Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102 — concerning protective order logistics, the scope or propriety of protective designations, or disputes regarding protected material must be conducted exclusively by admitted counsel.

Should any concerns arise regarding potential inadvertent disclosure of protected information by the intervenor or the intervenor's counsel — for example, the inclusion of protected information in an unredacted filing or an improper communication — such concerns must be raised promptly with the GAO and documented in writing. Admitted counsel should also communicate directly with intervenor's counsel to attempt to resolve any such issue informally before escalating the matter to the GAO, consistent with GAO's preference for party coordination on protective order disputes.

C. Coordination with GAO

All communications with GAO attorneys regarding protective order matters — including communications with Senior Attorney Angela M. Palermino of the Procurement Law Division, who has been assigned to this protest — must be handled by admitted counsel. This includes requests for clarification of the scope of the Protective Order, applications to modify the Protective Order (such as requests to admit additional counsel or to expand the technical advisor's access), and any reports of protective order violations or potential violations.

VIII. Procedures for Return or Destruction of Protected Material

Upon conclusion of the protest proceedings — including the resolution of any corrective action that may be directed by the GAO, the completion of any post-decision cost claim submitted under 4 C.F.R. § 21.8, and the expiration of any applicable appeal period — all protected materials, both physical and electronic, must be returned to the producing party or destroyed, as directed by the terms of the GAO Protective Order.

The specific procedures for return or destruction are as follows:

1. Physical Materials. All hard-copy protected materials, including the original Agency Report tabs, any copies made during the course of the proceeding, and any handwritten notes taken by admitted counsel during review of protected material, must be either (a) returned to the agency and intervenor's counsel by secure courier or registered mail, or (b) destroyed by cross-cut shredding, as directed by the Protective Order. The sign-out log will be reviewed to ensure that all physical materials are accounted for.

2. Electronic Materials. All electronic copies of protected materials, including documents stored in the secure matter folder on the DMS, must be permanently deleted. The IT department will be engaged to confirm that all electronic copies have been removed from the firm's systems, including from backup tapes and archive storage, to the extent reasonably practicable.

3. Certification. Admitted counsel must certify in writing to the GAO that all protected materials have been returned or destroyed in accordance with the terms of the Protective Order. This certification will be signed by Claudia Merritt as responsible partner and filed with the GAO within the timeframe specified in the Protective Order.

4. Retained Work Product. The firm may retain attorney work product that references or summarizes protected material — such as internal memoranda, draft filings, and legal analyses — provided that such work product is maintained under the same access restrictions as the underlying protected material, unless the Protective Order expressly requires the destruction of all derivative work product. Any retained work product will remain subject to the confidentiality obligations imposed by the Protective Order in perpetuity unless the producing party consents to its release.

5. Matter Closing Procedures. The matter closing process for engagement 1019-00003 must include a specific, documented step for verification of the return or destruction of all protected materials. The responsible partner will not authorize the closure of the matter until this step has been completed and the required GAO certification has been filed.

IX. Consequences of Non-Compliance

The seriousness of compliance with the Protective Order and these internal procedures cannot be overstated. Violation of the Protective Order or these internal procedures may result in the following consequences:

1. GAO Sanctions. The GAO has broad discretion to impose sanctions for violations of its Protective Orders, including the potential dismissal of the protest with prejudice. Dismissal would terminate Whitmore's challenge to the contract award and, given the time-sensitive nature of the procurement, would likely result in the permanent loss of the competitive opportunity. The GAO may also impose lesser sanctions, such as striking filings or barring the admission of certain evidence.

2. Bar Disciplinary Referral. The GAO may refer attorneys involved in a protective order violation to the appropriate state bar disciplinary authorities. For the admitted counsel on this engagement, the relevant jurisdictions include the District of Columbia Bar, the Virginia State Bar, and any other jurisdictions in which the attorney is admitted. Disciplinary proceedings could result in sanctions ranging from a private reprimand to suspension or disbarment.

3. Criminal Liability. In cases involving the willful disclosure of confidential government information, attorneys and other individuals may face criminal prosecution under 18 U.S.C. § 1905, which provides for fines and imprisonment of up to one year. Additional criminal statutes may also apply, depending on the nature of the disclosure and the information involved.

4. Internal Firm Disciplinary Action. Any violation of these procedures, whether or not it results in an actual breach of the Protective Order, will be subject to the firm's internal disciplinary processes. Depending on the severity of the violation, consequences may range from a written warning to termination of employment or partnership.

Immediate Reporting Obligation. Any team member who becomes aware of a potential or actual breach of the Protective Order — whether by a member of the Calderwood & Harkness team, by opposing counsel, by agency personnel, or by any other person — must immediately notify Claudia Merritt. "Immediately" means as soon as the individual becomes aware of the potential breach, without waiting to investigate or confirm the breach independently. Time is of the essence in addressing protective order violations, as prompt action may mitigate the consequences and demonstrate good faith to the GAO.

X. Questions and Contacts

All questions regarding the handling of protected material, the scope of the Protective Order, the procedures set forth in this memorandum, or any other aspect of the protective order framework applicable to this matter should be directed to:

Claudia Merritt Partner, Government Contracts Calderwood & Harkness LLP Direct Line: (202) 555-4120

Email: c.merritt@calderwoodharkness.com

Lt. Col. (Ret.) Nathan Yardley Of Counsel, Government Contracts Calderwood & Harkness LLP Direct Line: (202) 555-4187

Email: n.yardley@calderwoodharkness.com

Team members are encouraged to err on the side of asking questions rather than making assumptions. If there is any uncertainty regarding whether a particular action is consistent with the Protective Order, the individual must refrain from taking the action until the question has been resolved by consulting with one of the contacts listed above.

This memorandum supersedes any prior informal guidance — whether oral or written — on protective order procedures for this matter. To the extent that any prior communications are inconsistent with the procedures established herein, this memorandum controls.

XI. Acknowledgment

Each team member receiving this memorandum is required to sign and return the attached Acknowledgment Form (Attachment A) to Claudia Merritt by close of business on Monday, October 16, 2023, confirming receipt and understanding of the procedures set forth herein.

The following individuals must execute and return the Acknowledgment Form:

• Ian Blackwood

• Alan Burke

• Sara Hendricks

• Nathan Yardley

• Megan Zhao

Please note that Claudia Merritt, Lt. Col. (Ret.) Nathan Yardley, and Megan Zhao have already executed Protective Order Acknowledgment forms that were filed with the GAO on October 12, 2023. The internal Acknowledgment Form attached to this memorandum is a separate, supplemental requirement for all team members — both admitted and non-admitted — and pertains specifically to the internal handling procedures established by this memorandum. Execution of the GAO Protective Order Acknowledgment does not satisfy the requirement to execute the internal Acknowledgment Form, and vice versa.

Signed and original Acknowledgment Forms will be maintained in the engagement file for matter 1019-00003.

CLAUDIA MERRITT Partner, Government Contracts Calderwood & Harkness LLP

Date: October 13, 2023

ATTACHMENT A

INTERNAL ACKNOWLEDGMENT FORM

Protective Order Handling Procedures Matter No. 1019-00003 Whitmore Aerospace LLC — GAO Bid Protest Case No. B-422187; B-422187.2

I, the undersigned, hereby confirm that I have received, read, and understand the Internal Memorandum dated October 13, 2023, prepared by Claudia Merritt, Partner, regarding Protective Order Handling Procedures for Matter No. 1019-00003, pertaining to the GAO bid protest filed on behalf of Whitmore Aerospace LLC, Case No. B-422187; B-422187.2.

I understand the obligations set forth in the memorandum, including the restrictions on access to protected material, the prohibition on disclosure of protected material to client personnel, the physical and electronic security procedures for protected materials, the requirements for marking work product derived from protected material, and the consequences of non-compliance. I agree to comply fully with all procedures set forth in the memorandum and to promptly report any potential or actual breach of the Protective Order to Claudia Merritt.

I understand that my obligations under this Acknowledgment are in addition to, and not in lieu of, any obligations I may have under the GAO Protective Order itself (if I am an admitted counsel member) or under any other applicable professional or ethical obligations.

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT Calderwood & Harkness LLP — 1750 K Street NW, Suite 1100, Washington, D.C. 20006

Name	Role	Practice Group
Claudia Merritt	Responsible Partner	Government Contracts
Lt. Col. (Ret.) Nathan Yardley	Of Counsel	Government Contracts
Megan Zhao	Senior Associate	Litigation
Name	Role	Practice Group
Ian Blackwood	Billing Partner	Banking & Finance
Alan Burke	Lead Associate	Privacy & Data Security
Sara Hendricks	Working Associate	Privacy & Data Security

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT THIS MEMORANDUM IS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE AND THE WORK PRODUCT DOCTRINE. IT IS INTENDED SOLELY FOR THE USE OF THE NAMED RECIPIENTS AND MAY NOT BE DISCLOSED, COPIED, OR DISTRIBUTED WITHOUT THE PRIOR WRITTEN AUTHORIZATION OF THE RESPONSIBLE PARTNER.
CALDERWOOD & HARKNESS LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006
INTERNAL MEMORANDUM
Date: October 13, 2023
To:
Ian Blackwood, Partner (Banking & Finance) — Billing Partner Alan Burke, Associate (Privacy & Data Security) — Lead Associate Sara Hendricks, Associate (Privacy & Data Security) — Working Associate Lt. Col. (Ret.) Nathan Yardley, Of Counsel (Government Contracts) Megan Zhao, Senior Associate (Litigation)
From: Claudia Merritt, Partner (Government Contracts) — Responsible Partner
Re: Protective Order Handling Procedures — Whitmore Aerospace LLC, GAO Bid Protest, Case No. B-422187; B-422187.2 (Solicitation No. FA8222-23-R-0087)
Engagement No.: 1019-00003
I. Purpose and Background
This memorandum establishes binding internal procedures for all members of the Calderwood & Harkness LLP engagement team handling protected material in connection with the bid protest filed before the Government Accountability Office on behalf of our client, Whitmore Aerospace LLC ("Whitmore" or "WAL"). The protest challenges the United States Department of the Air Force's award of Contract No. FA8222-23-D-0193 — an indefinite-delivery/indefinite-quantity ("IDIQ") contract with a ceiling value of $387.5 million for the design, development, production, integration, and sustainment of advanced infrared countermeasure ("IRCM") pod assemblies — to Halcyon Defense Systems Inc. ("Halcyon" or "HDS"). The procurement was conducted under Solicitation No. FA8222-23-R-0087, issued by the Air Force Life Cycle Management Center ("AFLCMC"), Sensors Directorate, Wright-Patterson Air Force Base, Ohio.
On October 12, 2023, the GAO issued a standard Protective Order in B-422187; B-422187.2, governing access to proprietary and source selection sensitive information that will be contained in the Agency Report and related filings by the parties throughout the pendency of the protest. The Protective Order establishes the framework under which admitted counsel and authorized individuals may receive, review, and use information designated as protected by the agency, the awardee, or other participating parties. The Protective Order was issued by GAO Senior Attorney Angela M. Palermino of the Procurement Law Division.
The Agency Report is expected to be filed by the Air Force (AFLCMC, Sensors Directorate, Wright-Patterson AFB, OH) on or about October 30, 2023. This date reflects a partial grant of the agency's extension request: the Air Force originally requested a twenty (20) calendar-day extension of the standard filing deadline; the GAO, on October 18, 2023, granted a ten (10) calendar-day extension. Accordingly, the Agency Report production date has been adjusted from the originally calculated date of approximately October 20, 2023 to October 30, 2023. The firm should anticipate receiving a substantial volume of protected material on or shortly after that date, making the establishment of clear handling procedures particularly urgent.
Strict compliance with the Protective Order is not merely a matter of professional best practice — it is mandatory. The consequences of a violation are severe and potentially career-altering. Violations of GAO Protective Orders may result in sanctions imposed by the Comptroller General, including the potential dismissal of the protest itself. Beyond the immediate litigation consequences, violations may lead to disqualification of counsel from the proceeding and from future GAO matters, referral to state bar disciplinary authorities for investigation and potential disciplinary proceedings, and, in cases involving willful disclosure of confidential government information, criminal liability under 18 U.S.C. § 1905 (disclosure of confidential information generally) and related federal statutes. Each team member is expected to read, understand, and strictly adhere to every procedure set forth in this memorandum.
This memorandum should be read in conjunction with the Protective Order itself, a copy of which has been provided to all admitted counsel. Non-admitted team members may request a copy of the Protective Order from the undersigned, as the Protective Order itself is a public document and does not contain protected information.
II. Admitted Counsel and Technical Advisors
A. Admitted Counsel Under the Protective Order
The following Calderwood & Harkness LLP attorneys have executed Protective Order Acknowledgment forms, which were filed with the GAO on October 12, 2023, and are authorized to access, review, handle, and use protected material in connection with this matter:
Only the individuals listed above are authorized to access protected material. No other attorney, paralegal, legal assistant, secretary, or staff member of Calderwood & Harkness LLP may access protected material under any circumstances, unless such individual is subsequently admitted under the Protective Order through the filing and approval of a supplemental application with the GAO. Any request to add additional admitted counsel must be coordinated through Claudia Merritt and will require the preparation and filing of a formal application, notice to all parties, and approval by the GAO.
B. Non-Admitted Team Members
The following members of the Calderwood & Harkness engagement team are not admitted under the Protective Order and may not access, review, handle, or otherwise come into contact with any protected material under any circumstances:
The roles of Mr. Blackwood, Mr. Burke, and Ms. Hendricks on this engagement are limited to matters that do not require access to protected material. Mr. Blackwood's responsibilities as billing partner are purely administrative and financial. Mr. Burke and Ms. Hendricks may be called upon to provide legal research and drafting support on discrete legal issues arising in the protest (for example, research on standards of review, burden of proof, or procedural issues), but their work must be conducted without access to any protected material.
Non-admitted team members may receive sanitized, non-protected summaries or analyses prepared by admitted counsel. Such summaries must be clearly marked as derived from protected material and must not contain, quote, paraphrase, or describe in specific detail any protected information. In practice, this means that admitted counsel preparing such summaries must strip all identifying details regarding the content of protected documents — including specific technical approaches, pricing figures, evaluation scores, and evaluator commentary — and limit the summary to generalized characterizations sufficient to frame the legal issues on which non-admitted team members are providing support. If there is any question as to whether a particular summary or communication crosses the line from permissible generalization to impermissible disclosure, the admitted counsel member must consult with Claudia Merritt before sharing the material.
C. Technical Advisor
Janet K. Overmeyer, Principal, Ridgeline Consulting Group LLC, 4501 Fairfax Drive, Suite 200, Arlington, Virginia 22203, has been identified and admitted as a technical advisor under the Protective Order. Ms. Overmeyer executed the required Protective Order Acknowledgment form, which was filed with the GAO as part of the Protective Order Application submitted on October 12, 2023.
Ms. Overmeyer is a recognized expert in electro-optical and infrared ("EO/IR") countermeasure systems, with over twenty-five years of experience in the defense aerospace sector. Her role on this engagement is to provide technical analysis of the agency's evaluation of competing proposals and to assist admitted counsel in understanding and articulating the technical aspects of Whitmore's protest grounds.
Ms. Overmeyer's access to protected material is limited to the scope described in the Protective Order Application filed on October 12, 2023. Specifically, she may review technical and evaluation-related protected material, including the technical volumes of proposals, SSEB technical evaluation worksheets and consensus findings, Evaluation Notices issued during discussions, and related technical memoranda. Ms. Overmeyer may not access the pricing data of the awardee (Halcyon) or any other offeror (including Marlowe Asset Management Electro-Optics Corp.), unless specifically authorized by subsequent order of the GAO upon application by protester's counsel demonstrating the necessity of such access for the technical advisor's analysis. Any request to expand the scope of Ms. Overmeyer's access must be coordinated through Claudia Merritt.
All communications with Ms. Overmeyer regarding protected material must be conducted by admitted counsel. Non-admitted team members may not communicate with Ms. Overmeyer regarding any aspect of the protected material or the substance of her technical analysis that derives from protected material.
III. Definition of Protected Material
A. Categories of Protected Material
Protected material encompasses any information designated by the Air Force, by Halcyon Defense Systems Inc. (represented by the law firm of Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102, with lead partner Theodore "Ted" J. Dunaway serving as counsel of record), or by any other party as protected under the Protective Order issued October 12, 2023. The categories of information that may be designated as protected include, but are not limited to, the following:
1.  Source Selection Evaluation Records. This category includes all materials generated by the Source Selection Evaluation Board ("SSEB") in connection with Solicitation No. FA8222-23-R-0087, including SSEB evaluation notes, consensus briefing slides and supporting documentation, individual evaluator worksheets and scoring sheets, and any memoranda or correspondence reflecting the deliberative process of the SSEB.
2.  Source Selection Decision Document. The Source Selection Decision Document ("SSDD") prepared by the Source Selection Authority, Brigadier General Harlan T. Jeffcoat, USAF, documenting the rationale for the award decision, the comparative analysis of proposals, and the integrated assessment of the evaluation results across all evaluation factors.
3.  Awardee Proposal Volumes. All volumes of Halcyon Defense Systems Inc.'s proposal submitted in response to the solicitation, including the Technical Volume, Management Volume, Past Performance Volume, and Pricing Volume, together with any revisions submitted during the discussion period.
4.  Evaluation Notices. Evaluation Notices ("ENs") issued to offerors during the discussion period conducted between August 14 and August 25, 2023, including ENs issued to Halcyon, to Whitmore, and (to the extent included in the Agency Report) to any other offerors.
5.  Internal Agency Memoranda. Internal agency memoranda and correspondence regarding competitive range determinations, discussion strategies, evaluation rationale, and other aspects of the source selection process, including any legal reviews conducted by the contracting officer's legal counsel or the procuring activity's Office of General Counsel.
6.  Awardee Proprietary Pricing Data. Halcyon's proprietary pricing data, including the evaluated total price of $361,200,000 and all underlying cost and pricing breakdowns, basis of estimate information, forward pricing rate agreements, and subcontractor pricing data submitted with the proposal.
7.  Awardee Subcontractor Information. Information regarding Halcyon's subcontractors and supply chain, including information concerning Meridian Semiconductor GmbH (Königsbrücker Straße 142, 01099 Dresden, Germany), which is identified in publicly available sources as Halcyon's sole-source supplier of gallium arsenide ("GaAs") sensor wafers used in the IRCM pod assemblies. Subcontractor teaming arrangements, workshare allocations, and subcontractor past performance information are all potentially protected.
8.  Third Offeror Information. Information concerning the third offeror, Marlowe Asset Management Electro-Optics Corp. (900 Technology Court, Colorado Springs, Colorado 80919), which was eliminated from the competitive range on August 3, 2023, prior to the commencement of discussions. This information may include Marlowe Asset Management's proposal materials and the agency's evaluation thereof to the extent such materials are included in the Agency Report.
9.  Other Designated Material. Any other material marked or designated as "PROTECTED" or otherwise subject to the Protective Order by the producing party, the GAO, or by agreement of the parties.
The foregoing list is illustrative, not exhaustive. The operative question is whether the producing party has designated the material as protected. If a document or piece of information bears a protective designation, it must be treated as protected material regardless of whether it falls neatly within one of the categories enumerated above.
B. Identification and Marking
Protected material produced in the Agency Report or in subsequent filings will be identified by the producing party's designation. The Air Force and intervenor's counsel have indicated that protected documents will typically be marked with the following legend, or words to substantially similar effect, on every page:
"PROTECTED — SUBJECT TO GAO PROTECTIVE ORDER — B-422187; B-422187.2"
All copies, notes, summaries, analyses, draft filings, internal memoranda, and other work product prepared by admitted counsel or the technical advisor that are derived from or contain protected material must bear the following legend prominently on the first page and, where practicable, on each subsequent page:
"CONTAINS PROTECTED INFORMATION — B-422187; B-422187.2 — FOR ADMITTED COUNSEL AND AUTHORIZED INDIVIDUALS ONLY"
This marking requirement applies to both physical and electronic documents. Admitted counsel must take affirmative steps to ensure that all such materials are properly marked before they are stored, transmitted, or filed. Failure to mark work product containing protected material creates an unacceptable risk of inadvertent disclosure and will be treated as a procedural violation subject to the consequences described in Section IX of this memorandum.
IV. Prohibition on Disclosure to Client Personnel
A. Absolute Bar on Client Access
This section addresses one of the most critical — and, in the undersigned's experience, most frequently misunderstood — aspects of GAO Protective Orders. The rule is absolute and admits of no exceptions:
No protected material may be shared with, disclosed to, or discussed with any personnel of Whitmore Aerospace LLC. This prohibition extends to every officer, director, employee, consultant (other than Ms. Overmeyer, whose access is governed by the terms of her admission as a technical advisor), independent contractor, agent, or other representative of Whitmore, including but not limited to:
•  Marcus J. Whitmore — Chief Executive Officer
•  Patricia "Trish" Langford — Chief Financial Officer
•  Donald R. Stokes — Vice President, Government Contracts
•  Any other Whitmore employee, officer, director, consultant, or agent
This prohibition is absolute and applies regardless of the individual's government security clearance level. The fact that Whitmore Aerospace LLC holds a Top Secret facility security clearance and that certain of its personnel hold individual security clearances at the Top Secret or Secret level is irrelevant for purposes of the Protective Order. Security clearances govern access to classified national security information and have no bearing on access to source selection sensitive and proprietary information protected under a GAO Protective Order, which serves an entirely distinct legal purpose — namely, preventing competitive harm to parties whose confidential business information has been produced in connection with the protest.
Similarly, the prohibition applies regardless of whether the Whitmore individual in question has executed a non-disclosure agreement with Whitmore, with the firm, or with any other entity. Non-disclosure agreements are private contractual arrangements and do not satisfy or override the requirements of a GAO Protective Order, which is an order issued by a tribunal with adjudicative authority over the proceeding.
Team members should be aware that the client, and particularly Mr. Stokes in his capacity as VP of Government Contracts, may from time to time press for more specific information regarding the contents of the Agency Report or the substance of Halcyon's proposal. These inquiries are understandable — the client has a significant business interest in the outcome of this protest and a natural desire to understand the basis of the evaluation. Nevertheless, any request for protected information must be firmly but respectfully declined, with an explanation that the Protective Order prohibits disclosure and that compliance is in the client's own interest, as a violation could jeopardize the protest itself.
B. Permissible Communications with the Client
The prohibition on disclosing protected material to the client does not mean that all substantive communication with the client must cease. Admitted counsel may and should maintain regular communication with Whitmore regarding the status, strategy, and progress of the protest. The following types of communications are permissible:
1.  General Status Updates. Admitted counsel may inform the client of procedural developments, upcoming deadlines, and the general posture of the case.
2.  General Assessment of Strengths and Weaknesses. Admitted counsel may discuss the general nature, strengths, and weaknesses of the protest grounds with client personnel, provided that no protected information is disclosed in the course of such discussions. For example, counsel may advise the client that a particular protest ground appears strong or weak based on the record, without revealing the specific protected evidence underlying that assessment.
3.  General Description of Agency Report Contents. Counsel may describe the general categories of documents received in the Agency Report (e.g., "We have received the evaluation records, the SSDD, and the awardee's proposal volumes") and the general nature of the agency's legal arguments as set forth in the Memorandum of Law, but may not reveal specific protected content.
4.  Information Already Known to the Client. Counsel may freely discuss information that is already known to the client through non-protected sources, including information disclosed to Whitmore during its enhanced post-award debriefing conducted on September 22, 2023, pursuant to 10 U.S.C. § 3304. The debriefing materials provided to Whitmore included the client's own evaluation ratings and certain comparative information regarding the evaluation. Information obtained through the debriefing is not subject to the Protective Order to the extent it was provided directly to the client by the agency.
In all client communications, admitted counsel must exercise careful judgment. If there is doubt as to whether a particular piece of information constitutes protected material, the information should not be shared with the client. When in doubt, consult with Claudia Merritt before making any disclosure.
V. Physical and Electronic Security Procedures
A. Physical Document Storage
The physical security of protected materials is essential to compliance with the Protective Order. The following procedures govern the storage and handling of all printed or hard-copy protected materials:
1.  Designated Storage Location. All printed or hard-copy protected materials must be stored in the locked filing cabinet designated for matter 1019-00003 in the secure document room on the 11th floor of the firm's Washington, D.C. office, located at 1750 K Street NW, Suite 1100. The filing cabinet has been labeled with the matter number and a notice that its contents are subject to the GAO Protective Order. The secure document room is accessible only by keycard, and access is limited to firm personnel with authorization.
2.  Locked at All Times. The filing cabinet is to remain locked at all times when not actively being accessed by admitted counsel. Keys to the filing cabinet have been distributed to each of the three admitted counsel members (Merritt, Yardley, Zhao). No duplicate keys may be created, and keys may not be loaned to any non-admitted individual. If a key is lost, Claudia Merritt must be notified immediately so that the lock can be replaced.
3.  Sign-Out Log. A sign-out log must be maintained on the interior of the filing cabinet door. Each instance of access to the filing cabinet must be recorded in the log. The following information must be entered for each access:
(i) the name of the person accessing the material;
(ii) the date and time of access;
(iii) the Agency Report Tab number(s) or document identifier(s) reviewed; and
(iv) the date and time of return of the material to the filing cabinet.
4.  No Removal from Secure Document Room. Protected material in hard-copy form may not be removed from the secure document room under any circumstances. Admitted counsel must review all physical materials on-site in the secure document room. Materials may not be taken to individual offices, conference rooms, or any other location within or outside the firm's offices.
B. Electronic Document Storage
The following procedures govern the electronic storage and handling of protected materials:
1.  Designated Secure Matter Folder. Electronic copies of protected materials must be stored exclusively in the firm's designated secure matter folder on the document management system ("DMS"), which has been established under the matter number 1019-00003 with a subfolder labeled "PROTECTED — Protective Order Materials." This folder is accessible only by the three admitted counsel members (Merritt, Yardley, Zhao) and the technical advisor (Overmeyer, who has been granted access through the firm's secure external portal for outside consultants).
2.  Access Restrictions. The secure matter folder must be access-restricted with permissions set by the firm's Information Technology ("IT") department. The IT department has been instructed to configure the folder with the most restrictive access settings available, limiting read, write, and download permissions to the four authorized individuals identified above. No broader team access is permitted. The IT department has confirmed that the access restrictions are in place as of October 13, 2023.
3.  Prohibited Storage Locations. Protected electronic documents must not be stored on personal devices (including personal laptops, tablets, or smartphones), portable storage media (including USB flash drives, external hard drives, SD cards, or CDs), personal email accounts (including personal Northgate Software, Cascade Health IT, Ridgeline Technologies, or other web-based email services), or any cloud storage platform outside the firm's authorized systems (including personal Larkspur Technologies, Hollowell Health IT, Cobalt Ridge Systems, or Meridian Systems accounts). This prohibition applies regardless of whether the personal device or account is password-protected or encrypted.
4.  Email Transmission. Email transmission of protected material is permitted only between admitted counsel using the firm's encrypted email system (Calderwood & Harkness's Ashgrove Software Exchange environment with TLS 1.3 encryption). Each email containing or attaching protected material must include the following legend in both the subject line and the body of the email:
"PROTECTED — SUBJECT TO GAO PROTECTIVE ORDER — B-422187; B-422187.2 — FOR ADMITTED COUNSEL ONLY"
Protected material may not be transmitted by email to the technical advisor, Ms. Overmeyer; instead, materials for Ms. Overmeyer's review must be uploaded to the secure external portal designated for her use. Email transmission of protected material to any person other than the admitted counsel members listed in Section II.A is strictly prohibited.
C. Printing and Reproduction
1.  Designated Secure Printer. Printing of protected materials is limited to the secure printer located in the 11th-floor document room (Printer ID: DC-11-SEC-01). Admitted counsel must retrieve printouts immediately upon printing and may not leave them unattended at the printer or anywhere else. The secure printer has been configured to require badge authentication before releasing print jobs, providing an additional layer of security.
2.  Minimization of Copies. Photocopying of protected materials is restricted and should be minimized to the greatest extent practicable. In general, admitted counsel should work from the original Agency Report copies or electronic versions rather than creating duplicates. When copies are necessary (for example, to facilitate annotation during review), any copies made must be logged in the sign-out log referenced in Section V.A.3 and stored in the same locked filing cabinet as the original materials.
3.  Destruction of Excess Copies. Any copies of protected material that are no longer needed for immediate use should be destroyed by cross-cut shredding using the shredder located in the secure document room. Destruction of copies should be noted in the sign-out log.
VI. Work Product Derived from Protected Material
A. Briefs and Filings
All GAO filings that incorporate or reference protected material — including the protester's comments on the Agency Report, any supplemental comments, hearing briefs (if a hearing is convened), post-hearing briefs, and any other submissions to the GAO — must be prepared in two separate versions:
1.  Protected Version. The protected version will be filed under the Protective Order and will be available only to admitted counsel of each party and to the GAO attorneys and decision-makers assigned to the case. The protected version will contain the full text of the filing, including all references to, quotations from, and analysis of protected material. The protected version must bear the protective legend specified in Section III.B on every page.
2.  Redacted/Public Version. The redacted version will be prepared by removing all protected information from the filing and replacing it with appropriate redaction indicators (e.g., brackets with the notation "[DELETED]" or "[REDACTED]"). The redacted version is suitable for distribution to non-admitted team members and client personnel and will serve as the version of record for purposes of any subsequent public disclosure. The redacted version must be clearly labeled as "REDACTED VERSION — PROTECTED INFORMATION REMOVED."
Admitted counsel — specifically, Claudia Merritt, Lt. Col. (Ret.) Nathan Yardley, or Megan Zhao — must personally review both versions of every filing before it is submitted to the GAO. This review is a critical quality-control step to ensure that no protected material has been inadvertently included in the redacted version. The review must compare the two versions on a paragraph-by-paragraph basis, with particular attention to passages where protected and non-protected information are intermingled. The reviewing attorney must initial and date a printed copy of the redacted version to confirm that the review has been completed.
B. Internal Memoranda and Analysis
Internal memoranda analyzing the Agency Report, the awardee's proposal, the evaluation records, or any other protected materials — including the planned comprehensive Agency Report Analysis memorandum that will be prepared following receipt of the Agency Report — must be prepared exclusively by admitted counsel. Non-admitted team members may not draft, review, or edit any memorandum or analysis that contains protected information.
If non-admitted team members (specifically, Mr. Burke and Ms. Hendricks) are tasked with legal research or drafting in support of the protest — for example, research on the applicable standard of review for technical evaluations, the propriety of conducting discussions, or the legal requirements for competitive range determinations — they may receive issue-framing instructions from admitted counsel. Such instructions must be limited to identifying the legal question to be researched and may not include protected information as part of the factual context. For example, an admitted counsel member may instruct Mr. Burke to research the legal standard governing the agency's obligation to conduct meaningful discussions without revealing the specific content of the Evaluation Notices issued to Halcyon.
Any internal memorandum containing protected information must be marked with the protective legend specified in Section III.B and access-restricted on the DMS to the admitted counsel members only. Such memoranda must be stored in the designated secure matter folder described in Section V.B.
VII. Communication with Opposing Parties and GAO
A. Coordination with Agency Counsel
All communications with counsel for the contracting agency — Captain Lucas M. Hargrove, USAF, Judge Advocate General's Corps, and Miriam T. Castellano, Senior Attorney, Office of the General Counsel of the Department of the Air Force, Acquisition and Fiscal Law Division (SAF/GCQ) — regarding any aspect of the protected material must be conducted exclusively by admitted counsel. Non-admitted team members may not participate in calls, meetings, or email exchanges with agency counsel that concern or may concern protected material.
This restriction applies to both substantive communications (e.g., discussions regarding the adequacy of the Agency Report, requests for supplemental document production, or disputes over protective designations) and logistical communications (e.g., scheduling, format of document production, or coordination of filing deadlines) to the extent that such logistical communications may involve references to protected material.
B. Coordination with Intervenor's Counsel
Communications with counsel for the intervenor, Halcyon Defense Systems Inc. — specifically, Theodore J. Dunaway and Rachel N. Sorensen of Kessler, Pratt & Dunaway LLP, 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102 — concerning protective order logistics, the scope or propriety of protective designations, or disputes regarding protected material must be conducted exclusively by admitted counsel.
Should any concerns arise regarding potential inadvertent disclosure of protected information by the intervenor or the intervenor's counsel — for example, the inclusion of protected information in an unredacted filing or an improper communication — such concerns must be raised promptly with the GAO and documented in writing. Admitted counsel should also communicate directly with intervenor's counsel to attempt to resolve any such issue informally before escalating the matter to the GAO, consistent with GAO's preference for party coordination on protective order disputes.
C. Coordination with GAO
All communications with GAO attorneys regarding protective order matters — including communications with Senior Attorney Angela M. Palermino of the Procurement Law Division, who has been assigned to this protest — must be handled by admitted counsel. This includes requests for clarification of the scope of the Protective Order, applications to modify the Protective Order (such as requests to admit additional counsel or to expand the technical advisor's access), and any reports of protective order violations or potential violations.
VIII. Procedures for Return or Destruction of Protected Material
Upon conclusion of the protest proceedings — including the resolution of any corrective action that may be directed by the GAO, the completion of any post-decision cost claim submitted under 4 C.F.R. § 21.8, and the expiration of any applicable appeal period — all protected materials, both physical and electronic, must be returned to the producing party or destroyed, as directed by the terms of the GAO Protective Order.
The specific procedures for return or destruction are as follows:
1.  Physical Materials. All hard-copy protected materials, including the original Agency Report tabs, any copies made during the course of the proceeding, and any handwritten notes taken by admitted counsel during review of protected material, must be either (a) returned to the agency and intervenor's counsel by secure courier or registered mail, or (b) destroyed by cross-cut shredding, as directed by the Protective Order. The sign-out log will be reviewed to ensure that all physical materials are accounted for.
2.  Electronic Materials. All electronic copies of protected materials, including documents stored in the secure matter folder on the DMS, must be permanently deleted. The IT department will be engaged to confirm that all electronic copies have been removed from the firm's systems, including from backup tapes and archive storage, to the extent reasonably practicable.
3.  Certification. Admitted counsel must certify in writing to the GAO that all protected materials have been returned or destroyed in accordance with the terms of the Protective Order. This certification will be signed by Claudia Merritt as responsible partner and filed with the GAO within the timeframe specified in the Protective Order.
4.  Retained Work Product. The firm may retain attorney work product that references or summarizes protected material — such as internal memoranda, draft filings, and legal analyses — provided that such work product is maintained under the same access restrictions as the underlying protected material, unless the Protective Order expressly requires the destruction of all derivative work product. Any retained work product will remain subject to the confidentiality obligations imposed by the Protective Order in perpetuity unless the producing party consents to its release.
5.  Matter Closing Procedures. The matter closing process for engagement 1019-00003 must include a specific, documented step for verification of the return or destruction of all protected materials. The responsible partner will not authorize the closure of the matter until this step has been completed and the required GAO certification has been filed.
IX. Consequences of Non-Compliance
The seriousness of compliance with the Protective Order and these internal procedures cannot be overstated. Violation of the Protective Order or these internal procedures may result in the following consequences:
1.  GAO Sanctions. The GAO has broad discretion to impose sanctions for violations of its Protective Orders, including the potential dismissal of the protest with prejudice. Dismissal would terminate Whitmore's challenge to the contract award and, given the time-sensitive nature of the procurement, would likely result in the permanent loss of the competitive opportunity. The GAO may also impose lesser sanctions, such as striking filings or barring the admission of certain evidence.
2.  Bar Disciplinary Referral. The GAO may refer attorneys involved in a protective order violation to the appropriate state bar disciplinary authorities. For the admitted counsel on this engagement, the relevant jurisdictions include the District of Columbia Bar, the Virginia State Bar, and any other jurisdictions in which the attorney is admitted. Disciplinary proceedings could result in sanctions ranging from a private reprimand to suspension or disbarment.
3.  Criminal Liability. In cases involving the willful disclosure of confidential government information, attorneys and other individuals may face criminal prosecution under 18 U.S.C. § 1905, which provides for fines and imprisonment of up to one year. Additional criminal statutes may also apply, depending on the nature of the disclosure and the information involved.
4.  Internal Firm Disciplinary Action. Any violation of these procedures, whether or not it results in an actual breach of the Protective Order, will be subject to the firm's internal disciplinary processes. Depending on the severity of the violation, consequences may range from a written warning to termination of employment or partnership.
Immediate Reporting Obligation. Any team member who becomes aware of a potential or actual breach of the Protective Order — whether by a member of the Calderwood & Harkness team, by opposing counsel, by agency personnel, or by any other person — must immediately notify Claudia Merritt. "Immediately" means as soon as the individual becomes aware of the potential breach, without waiting to investigate or confirm the breach independently. Time is of the essence in addressing protective order violations, as prompt action may mitigate the consequences and demonstrate good faith to the GAO.
X. Questions and Contacts
All questions regarding the handling of protected material, the scope of the Protective Order, the procedures set forth in this memorandum, or any other aspect of the protective order framework applicable to this matter should be directed to:
Claudia Merritt Partner, Government Contracts Calderwood & Harkness LLP Direct Line: (202) 555-4120
Email: c.merritt@calderwoodharkness.com
Lt. Col. (Ret.) Nathan Yardley Of Counsel, Government Contracts Calderwood & Harkness LLP Direct Line: (202) 555-4187
Email: n.yardley@calderwoodharkness.com
Team members are encouraged to err on the side of asking questions rather than making assumptions. If there is any uncertainty regarding whether a particular action is consistent with the Protective Order, the individual must refrain from taking the action until the question has been resolved by consulting with one of the contacts listed above.
This memorandum supersedes any prior informal guidance — whether oral or written — on protective order procedures for this matter. To the extent that any prior communications are inconsistent with the procedures established herein, this memorandum controls.
XI. Acknowledgment
Each team member receiving this memorandum is required to sign and return the attached Acknowledgment Form (Attachment A) to Claudia Merritt by close of business on Monday, October 16, 2023, confirming receipt and understanding of the procedures set forth herein.
The following individuals must execute and return the Acknowledgment Form:
•  Ian Blackwood
•  Alan Burke
•  Sara Hendricks
•  Nathan Yardley
•  Megan Zhao
Please note that Claudia Merritt, Lt. Col. (Ret.) Nathan Yardley, and Megan Zhao have already executed Protective Order Acknowledgment forms that were filed with the GAO on October 12, 2023. The internal Acknowledgment Form attached to this memorandum is a separate, supplemental requirement for all team members — both admitted and non-admitted — and pertains specifically to the internal handling procedures established by this memorandum. Execution of the GAO Protective Order Acknowledgment does not satisfy the requirement to execute the internal Acknowledgment Form, and vice versa.
Signed and original Acknowledgment Forms will be maintained in the engagement file for matter 1019-00003.
CLAUDIA MERRITT Partner, Government Contracts Calderwood & Harkness LLP
Date: October 13, 2023
ATTACHMENT A
INTERNAL ACKNOWLEDGMENT FORM
Protective Order Handling Procedures Matter No. 1019-00003 Whitmore Aerospace LLC — GAO Bid Protest Case No. B-422187; B-422187.2
I, the undersigned, hereby confirm that I have received, read, and understand the Internal Memorandum dated October 13, 2023, prepared by Claudia Merritt, Partner, regarding Protective Order Handling Procedures for Matter No. 1019-00003, pertaining to the GAO bid protest filed on behalf of Whitmore Aerospace LLC, Case No. B-422187; B-422187.2.
I understand the obligations set forth in the memorandum, including the restrictions on access to protected material, the prohibition on disclosure of protected material to client personnel, the physical and electronic security procedures for protected materials, the requirements for marking work product derived from protected material, and the consequences of non-compliance. I agree to comply fully with all procedures set forth in the memorandum and to promptly report any potential or actual breach of the Protective Order to Claudia Merritt.
I understand that my obligations under this Acknowledgment are in addition to, and not in lieu of, any obligations I may have under the GAO Protective Order itself (if I am an admitted counsel member) or under any other applicable professional or ethical obligations.
Name: ________
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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT Calderwood & Harkness LLP — 1750 K Street NW, Suite 1100, Washington, D.C. 20006
Name | Role | Practice Group
Claudia Merritt | Responsible Partner | Government Contracts
Lt. Col. (Ret.) Nathan Yardley | Of Counsel | Government Contracts
Megan Zhao | Senior Associate | Litigation
Name | Role | Practice Group
Ian Blackwood | Billing Partner | Banking & Finance
Alan Burke | Lead Associate | Privacy & Data Security
Sara Hendricks | Working Associate | Privacy & Data Security

INTERNAL MEMORANDUM

ATTACHMENT A

INTERNAL ACKNOWLEDGMENT FORM

Record

Parties

Dates

Amounts