UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE PROCUREMENT LAW DIVISION 441 G Street NW Washington, D.C. 20548
In the Matter of:
Whitmore Aerospace LLC,
Protester,
GAO Case No. B-422187; B-422187.2
Solicitation No.: FA8222-23-R-0087
Contracting Activity: Air Force Life Cycle Management Center (AFLCMC), Sensors Directorate, Wright-Patterson Air Force Base, Ohio 45433
PROTESTER'S APPLICATION FOR PROTECTIVE ORDER PURSUANT TO 4 C.F.R. § 21.4
October 12, 2023
Filed by:
Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Counsel for Protester Whitmore Aerospace LLC
I. INTRODUCTION AND PURPOSE
Whitmore Aerospace LLC ("Whitmore" or "Protester"), through its undersigned counsel at Calderwood & Harkness LLP, respectfully submits this Application for Issuance of a Standard Protective Order pursuant to 4 C.F.R. § 21.4 to govern the treatment of proprietary, confidential, and source selection sensitive information that is expected to be included in the Agency Report and other filings in this protest proceeding before the Government Accountability Office ("GAO").
The underlying protest, filed on September 26, 2023, challenges the decision of the U.S. Department of the Air Force ("Air Force" or "Agency") to award Contract No. FA8222-23-D-0193 — an indefinite-delivery/indefinite-quantity ("IDIQ") contract with a total ceiling value of $387,500,000 for advanced infrared countermeasure ("IRCM") pod assemblies and associated technical data, engineering support, and sustainment services — to Halcyon Defense Systems Inc. ("Halcyon" or "Awardee") under Solicitation No. FA8222-23-R-0087. The procurement was conducted as a competitive negotiated acquisition under Federal Acquisition Regulation ("FAR") Part 15, and the source selection was performed using a best-value tradeoff methodology.
The Agency Report, which is expected to be filed on or about October 30, 2023 (subject to any extension that may be granted by this Office), will necessarily contain source selection sensitive information, including the Source Selection Decision Document ("SSDD"), Source Selection Evaluation Board ("SSEB") evaluation notes and narratives, competitive range determination documents, Evaluation Notices (including, at a minimum, EN-WAL-001 and EN-WAL-002 issued to Whitmore), and technical, management, and pricing details drawn from both Halcyon's proposal and Whitmore's proposal that constitute proprietary and competition-sensitive data. Additionally, the Agency Report is expected to contain information relating to an organizational conflict of interest ("OCI") determination involving Halcyon's subsidiary, Halcyon Analytical Services LLC, and documents relating to the Agency's OCI mitigation plan.
This information, by its very nature, cannot be disclosed to competitive decision-makers at Whitmore or to any person not authorized to receive it under the terms of a protective order. At the same time, Protester's counsel must have access to the complete source selection record in order to prepare meaningful legal arguments in response to the Agency Report, to identify potential additional protest grounds that may emerge from the record, and to effectively represent the Protester's interests in this proceeding. A protective order is therefore necessary and appropriate to permit Protester's outside counsel and expert consultant to review and respond to such information while safeguarding the legitimate confidentiality interests of all parties and preserving the integrity of the procurement process.
Protester respectfully submits that the issuance of a standard protective order is fully consistent with well-established GAO practice, serves the interests of all parties, and will facilitate the efficient and fair resolution of this protest.
II. BACKGROUND OF THE PROTEST
On September 15, 2023, the Air Force, acting through the Air Force Life Cycle Management Center ("AFLCMC"), Sensors Directorate, Wright-Patterson Air Force Base, Ohio, awarded Contract No. FA8222-23-D-0193 to Halcyon Defense Systems Inc. under a competitive negotiated procurement conducted pursuant to FAR Part 15. The procurement was issued under North American Industry Classification System ("NAICS") Code 336413 (Other Aircraft Parts and Auxiliary Equipment Manufacturing) and Product and Service Code ("PSC") 1270 (Aircraft Countermeasures). The contract is structured as an IDIQ contract with a total ceiling of $387,500,000 and a base ordering period of five years with one five-year option period.
Whitmore received formal notification of the unsuccessful award determination from the Contracting Officer on September 18, 2023. On September 19, 2023, Whitmore timely requested an enhanced debriefing in accordance with 10 U.S.C. § 3304 (formerly 10 U.S.C. § 2305(b)(6)(A)). The Air Force provided Whitmore with an enhanced written debriefing on September 22, 2023. The debriefing identified the evaluation ratings assigned to Whitmore's proposal, described the relative merits of Whitmore's proposal and the awardee's proposal under each evaluation factor and subfactor, and provided the Agency's rationale for the best-value tradeoff determination. The debriefing did not, however, contain sufficient detail to fully assess the reasonableness of the Agency's evaluation or the propriety of the source selection decision, particularly with respect to the tradeoff analysis, the conduct of discussions, the OCI determination, and the realism analysis of the awardee's proposed labor rates.
Based on information available from the debriefing and other sources, Whitmore, through its counsel at Calderwood & Harkness LLP, filed this protest on September 26, 2023, within the ten-day post-debriefing filing deadline prescribed by 4 C.F.R. § 21.2(a)(2). GAO acknowledged receipt of the protest and issued its formal notice of protest to the Air Force on September 27, 2023. The Competition in Contracting Act ("CICA") automatic stay of contract performance took effect immediately upon the Agency's receipt of the notice of protest, in accordance with 31 U.S.C. § 3553(c)(1).
On October 2, 2023, Halcyon Defense Systems Inc. filed its Notice of Intervention in this proceeding through its counsel, Kessler, Pratt & Dunaway LLP, located at 8300 Greensboro Drive, Suite 950, Tysons, Virginia 22102, with lead partner Theodore ("Ted") J. Dunaway as counsel of record.
The protest raises four principal grounds, each of which will require detailed review of the source selection record and, accordingly, access to protected information:
First, Whitmore contends that the Air Force conducted an unreasonable best-value tradeoff analysis in violation of FAR 15.308 and the stated evaluation criteria of Solicitation No. FA8222-23-R-0087. Specifically, the Source Selection Authority failed to articulate a rational basis for determining that Halcyon's technical advantages, if any, were worth the $17,400,000 price premium over Whitmore's proposal (Whitmore's evaluated total price of $343,800,000 versus Halcyon's evaluated total price of $361,200,000).
Second, Whitmore alleges that the Agency conducted materially unequal discussions during the discussion period of August 14–25, 2023, by providing Halcyon with more detailed and substantively meaningful discussion questions than those provided to Whitmore, thereby affording Halcyon an unfair competitive advantage in revising its proposal.
Third, Whitmore contends that the Agency failed to properly identify, evaluate, and mitigate an organizational conflict of interest arising from Halcyon's subsidiary, Halcyon Analytical Services LLC, which performed an Analysis of Alternatives ("AoA") study for the IRCM pod program under Contract No. FA8222-21-C-0018 (valued at approximately $2,300,000). Whitmore alleges that Halcyon Analytical Services LLC's access to non-public program information and its role in shaping the requirements provided Halcyon with an unequal access to information OCI that the Agency's mitigation plan did not adequately address.
Fourth, Whitmore challenges the Agency's failure to evaluate the realism of Halcyon's proposed labor rates under CLIN 0002 (Engineering Support Services), arguing that Halcyon's proposed rates were unrealistically low and indicative of either a misunderstanding of the solicitation requirements or a performance risk that the Agency was required to assess.
Each of these grounds requires examination of source selection sensitive materials, competitor proprietary information, and other documents that the Agency and Intervenor would reasonably be expected to designate as protected.
III. NEED FOR A PROTECTIVE ORDER
The need for a protective order in this proceeding is clear and compelling. The Agency Report is expected to include documents and information falling within at least the following categories of protected material, each of which warrants safeguarding under the terms of a protective order:
Source Selection Sensitive Information. The Agency Report will include the complete Source Selection Decision Document ("SSDD") authored by the Source Selection Authority, Brigadier General Harlan T. Jeffcoat, USAF. It will also include the SSEB evaluation notes and narratives prepared under the direction of the SSEB Chair, Dr. Yolanda R. Fenn. These materials contain adjectival ratings and detailed narrative evaluations for each offeror across all evaluation factors and subfactors — including Mission Capability (with subfactors for Technical Approach, Manufacturing Readiness, and Management Approach), Past Performance, Cost/Price, and the Small Business Participation factor — as well as competitive range determination materials, discussion records, and Evaluation Notices (including at a minimum EN-WAL-001 and EN-WAL-002 directed to Whitmore). This information constitutes the core of the source selection record, and its disclosure outside the terms of a protective order could compromise the integrity of any corrective action that may result from this protest and could reveal procurement-sensitive deliberative processes.
Proprietary Proposal Information of the Intervenor. The Agency Report will necessarily include technical, management, and pricing details from Halcyon's proposal, including its evaluated total price of $361,200,000, its proposed technical approach to IRCM pod design and manufacturing, its proposed management structure, staffing plans, and key personnel, and its subcontractor relationships. Of particular sensitivity is information relating to Halcyon's sole-source supplier arrangement with Meridian Semiconductor GmbH, headquartered in Dresden, Germany, for the supply of gallium arsenide ("GaAs") sensor wafers — a critical component of the IRCM pod assembly. This proprietary supplier relationship and any associated terms, pricing, or technical specifications constitute highly competition-sensitive trade information that must be protected from unauthorized disclosure.
Protester's Proprietary Information. Although Whitmore is, of course, the Protester in this matter, its own proposal details contained in the Agency Report also warrant protection. Whitmore's proposal materials include its evaluated total price of $343,800,000, its detailed technical approach, its subcontractor arrangements (including its relationship with Pinnacle Precision Manufacturing Inc. of Beavercreek, Ohio), its proposed labor categories and rates, and other competitive information that Whitmore does not wish to be disclosed to competitors or to the public. Protection of this information is necessary to preserve Whitmore's competitive position in future procurements.
Third-Party Proprietary Information. The Agency Report may also contain information relating to the proposal of the third offeror in this procurement, Marlowe Asset Management Electro-Optics Corp. ("Marlowe Asset Management"), which was eliminated at the competitive range determination on August 3, 2023. Although Marlowe Asset Management is not a party to this protest, any references to Marlowe Asset Management's proposal in the evaluation record, including ratings, narrative assessments, or pricing information, constitute proprietary information of a non-party and warrant protection under the order.
Contract Pricing and Cost Data. The Agency Report is expected to include pricing data for Contract Line Item Numbers ("CLINs") 0001 through 0004, labor rate data submitted by each offeror, and any cost or pricing information submitted by offerors in accordance with the solicitation's pricing instructions. This data is inherently competition-sensitive and, if disclosed, could provide competitors with unfair insight into the pricing strategies and cost structures of the parties.
OCI-Related Materials. The protest raises a specific challenge to the Agency's handling of an organizational conflict of interest involving Halcyon Analytical Services LLC. The Agency Report is expected to include documents relating to Halcyon Analytical Services LLC's prior performance of an Analysis of Alternatives study under Contract No. FA8222-21-C-0018 (valued at approximately $2,300,000), the Agency's OCI investigation and analysis, the OCI mitigation plan developed and implemented by the Agency, and any correspondence or submissions from Halcyon regarding the OCI. These materials may contain proprietary business information of Halcyon and its subsidiary, as well as internal Agency deliberative communications.
Without the issuance of a protective order, Protester's counsel would be unable to access and analyze the source selection record and other documents necessary to prosecute the protest on behalf of Whitmore. The absence of such access would effectively deprive the Protester of its right to a meaningful review of its protest grounds, a result inconsistent with both the purposes of the CICA protest process and GAO's longstanding practice of facilitating full and fair participation by all parties through the use of protective orders. Conversely, without a protective order, the Agency and the Intervenor would have entirely legitimate concerns about the disclosure of proprietary and competition-sensitive information to the Protester's competitive decision-makers, and may be reluctant to include the full range of relevant documents in the Agency Report.
A protective order will balance the Protester's need for meaningful access to the record against the confidentiality interests of the Agency, the Intervenor, and any affected third parties. The issuance of protective orders in bid protest proceedings is routine and well-established. See, e.g., Aerojet Rocketdyne Holdings, Inc., B-420437, Feb. 3, 2022 (protective order issued to govern source selection sensitive materials in IDIQ contract protest); Tarrant Corporation, B-419751.2, Nov. 17, 2021 (protective order governing proprietary technical and pricing data). Indeed, GAO has consistently recognized that the protective order mechanism is the primary means by which the competing interests of access and confidentiality are reconciled in protest proceedings. See 4 C.F.R. § 21.4(a) ("Any party may request that the Comptroller General issue a protective order . . . .").
IV. PROPOSED TERMS OF THE PROTECTIVE ORDER
Protester requests issuance of GAO's standard protective order, a copy of which is attached hereto as Exhibit A with the relevant case information and proposed admitted individuals inserted in the appropriate fields. The standard protective order includes the following key provisions, which Protester submits are appropriate and sufficient to protect the interests of all parties:
Access Limited to Admitted Counsel and Authorized Individuals. Only those individuals who have been specifically admitted under the protective order by GAO may access materials designated as protected. Protected materials shall not be disclosed to any person who has not been admitted, including employees, officers, and directors of the Protester. Specifically, protected materials shall not be disclosed to Whitmore's Chief Executive Officer, Marcus J. Whitmore; Whitmore's Chief Financial Officer, Patricia ("Trish") Langford; Whitmore's Vice President for Government Contracts, Donald R. Stokes; or any other Whitmore employee, agent, or representative. This restriction extends to all forms of communication, whether written, oral, electronic, or otherwise, and encompasses both the protected materials themselves and any discussions, analyses, or summaries that would reveal the substance of protected information.
Use Restriction. All protected materials may be used solely for purposes of the protest proceeding in GAO Case No. B-422187; B-422187.2 and any related proceedings, including any appeal or subsequent protest arising directly from this proceeding. Protected materials may not be used for any competitive, commercial, marketing, business development, proposal preparation, or other purpose whatsoever. This restriction survives the conclusion of the protest proceeding and the termination or expiration of the protective order.
Secure Handling and Storage. All protected materials, including paper copies, electronic copies, notes, summaries, and work product incorporating protected information, must be maintained in a secure manner at the offices of Calderwood & Harkness LLP, 1750 K Street NW, Suite 1100, Washington, D.C. 20006. Paper copies of protected materials shall be stored in a locked file cabinet or safe accessible only to admitted individuals. Electronic copies shall be stored on secured, password-protected, and access-restricted systems maintained by Calderwood & Harkness LLP's information technology department. Protected materials shall not be transmitted by unencrypted email, stored on portable media (such as USB drives) outside the secure facility, or uploaded to cloud storage systems that are not approved by Calderwood & Harkness LLP's security protocols.
Marking Requirements. All documents containing protected information shall be clearly marked on each page as follows:
"PROTECTED MATERIAL — SUBJECT TO PROTECTIVE ORDER — B-422187; B-422187.2"
Any party submitting documents containing protected information in any filing with GAO shall segregate the protected portions from non-protected portions to the extent practicable and shall clearly designate the protected portions in accordance with the marking conventions established by the order.
Return or Destruction. Upon the conclusion of the protest proceeding, including the resolution of any post-decision requests for reconsideration, all protected materials — including copies, notes, summaries, extracts, and work product incorporating protected information — shall be destroyed or returned to the producing party in accordance with the terms of the order. Within thirty (30) days of the conclusion of the proceeding, each admitted individual shall certify in writing to GAO and to the producing party that all protected materials in that individual's possession or control have been destroyed or returned and that no copies or records have been retained.
Sanctions for Violation. Any violation of the protective order may subject the violating individual to sanctions imposed by the Comptroller General, which may include but are not limited to: (a) referral to applicable bar disciplinary authorities for any admitted attorney found to have violated the order; (b) referral to the relevant Inspector General for any government personnel found to have violated the order; (c) exclusion of the violating individual from future admission under protective orders issued by GAO; and (d) such other remedial or punitive measures as the Comptroller General may deem appropriate to enforce compliance with the order and protect the interests of the affected parties.
V. PERSONS TO BE ADMITTED UNDER THE PROTECTIVE ORDER
Protester proposes the following individuals for admission under the protective order. Each individual's qualifications, role in the proceeding, and absence of competitive interest are set forth below. Detailed biographical information and bar admission credentials for each proposed admitted individual are provided in Exhibit B.
A. Outside Counsel — Calderwood & Harkness LLP
1. Claudia Merritt — Responsible Partner
Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-4100
Email: c.merritt@calderwoodharkness.com
Bar Admissions: District of Columbia Bar (No. 487621); Virginia State Bar (No. 76903)
Ms. Merritt is a partner in the Government Contracts and Litigation Practice Groups at Calderwood & Harkness LLP. She serves as the responsible partner and lead counsel for the Protester in this proceeding and is responsible for all filings, strategic decisions, and advocacy before GAO. Ms. Merritt has extensive experience representing government contractors in bid protest matters before GAO, the Court of Federal Claims, and the Federal Circuit. She has no financial interest, direct or indirect, in Whitmore Aerospace LLC, Halcyon Defense Systems Inc., or any other party to the procurement. She did not participate in the preparation of Whitmore's proposal under Solicitation No. FA8222-23-R-0087 and holds no competitive interest in the IRCM pod assembly procurement.
2. Lt. Col. (Ret.) Nathan Yardley — Of Counsel, Government Contracts Practice Group
Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-4118
Email: n.yardley@calderwoodharkness.com
Bar Admission: Virginia State Bar (No. 82456); admitted to practice before GAO
Lt. Col. (Ret.) Yardley is Of Counsel in the Government Contracts Practice Group at Calderwood & Harkness LLP. He serves as the subject matter lead on government contracts issues in this protest and is the primary drafter of all protest pleadings, including the initial protest, the comments on the Agency Report, and any supplemental protest filings. He will be principally responsible for the detailed analysis of the source selection record and evaluation documentation. Lt. Col. (Ret.) Yardley is a retired U.S. Air Force Judge Advocate General's Corps officer with over twenty years of experience in military procurement law, including service as a legal advisor to source selection authorities at AFLCMC. He has no financial interest, direct or indirect, in Whitmore Aerospace LLC, Halcyon Defense Systems Inc., or any other party to the procurement. He did not participate in the preparation of Whitmore's proposal and holds no competitive interest in the procurement.
3. Megan Zhao — Senior Associate, Litigation
Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-4127
Email: m.zhao@calderwoodharkness.com
Bar Admissions: District of Columbia Bar (No. 1058743); New York State Bar (No. 5421089)
Ms. Zhao is a Senior Associate in the Litigation Practice Group at Calderwood & Harkness LLP. She will be responsible for hearing preparation, brief drafting, legal research, and the detailed review and analysis of Agency Report materials. Ms. Zhao has significant experience in complex commercial and government contract litigation, including bid protest matters before GAO and the Court of Federal Claims. She has no financial interest, direct or indirect, in Whitmore Aerospace LLC, Halcyon Defense Systems Inc., or any other party to the procurement. She did not participate in the preparation of Whitmore's proposal and holds no competitive interest in the procurement.
B. Technical Advisor / Expert Consultant
4. Janet K. Overmeyer — Principal, Ridgeline Consulting Group LLC
Ridgeline Consulting Group LLC 4501 Fairfax Drive, Suite 200 Arlington, Virginia 22203 Telephone: (703) 555-8200
Email: j.overmeyer@ridgelineconsulting.com
Ms. Overmeyer is the Principal of Ridgeline Consulting Group LLC, an aerospace and defense technical consulting firm specializing in manufacturing readiness assessments, defense acquisition program management, and infrared and electro-optical countermeasure system engineering. She will serve as an expert technical advisor to Protester's counsel on matters relating to manufacturing readiness evaluation methodology, IRCM pod assembly technical requirements, and the assessment of the adequacy of evaluation factor ratings assigned by the SSEB. Ms. Overmeyer's technical expertise is essential to counsel's ability to analyze the source selection record and articulate the protest grounds with precision and credibility.
Disclosure Regarding Prior Involvement: In the interest of full candor, Protester discloses that Ms. Overmeyer, through Ridgeline Consulting Group LLC, assisted Whitmore in the preparation of its technical and management proposal volumes submitted under Solicitation No. FA8222-23-R-0087. Ms. Overmeyer provided consulting support related to the articulation of Whitmore's manufacturing readiness approach, preparation of the Manufacturing Readiness Level ("MRL") assessment documentation, and review of the technical proposal narrative prior to submission.
Although Ms. Overmeyer has knowledge of the substance of Whitmore's own proposal, she does not have any financial interest in the outcome of the procurement other than a consulting fee arrangement with Whitmore that is unrelated to and not contingent upon the contract award or the outcome of this protest. Her admission under the protective order is necessary because the protest grounds require expert analysis of manufacturing readiness evaluation criteria, source selection methodology, and the technical adequacy of the SSEB's evaluation — subjects that are beyond the expertise of outside legal counsel and that require the kind of specialized technical knowledge that Ms. Overmeyer possesses.
Protester acknowledges that Ms. Overmeyer's prior involvement in proposal preparation may warrant heightened attention by this Office and the other parties. Protester represents that the following safeguards will be implemented:
(a) Ms. Overmeyer's access to Halcyon's proprietary proposal information will be limited to those portions of the record that are necessary for her to provide meaningful technical advice to counsel on the specific protest grounds;
(b) Protester's counsel will ensure that Ms. Overmeyer does not communicate any protected information to Whitmore personnel, including CEO Marcus J. Whitmore, CFO Patricia Langford, VP Government Contracts Donald Stokes, or any other Whitmore employee, officer, director, or agent;
(c) Ms. Overmeyer will not use any protected information for any purpose other than providing technical advisory services to Protester's counsel in connection with this protest proceeding;
(d) Ms. Overmeyer will execute a Protective Order Acknowledgment form, specifically acknowledging her obligations with respect to the non-disclosure, non-use, and return or destruction of protected materials; and
(e) Upon conclusion of the protest, Ms. Overmeyer will return or destroy all protected materials in her possession and certify compliance in writing.
GAO has routinely admitted technical advisors and consultants under protective orders in protest proceedings, even where such individuals have had prior involvement in the protester's proposal preparation, provided that appropriate safeguards are in place. See, e.g., BAE Systems Info. and Elec. Sys. Integration, Inc., B-416564.2, Dec. 14, 2018; Ashbury Partners LLC, B-415089.3, Mar. 2, 2018. Protester submits that the safeguards described above are sufficient to protect the confidentiality interests of the Agency and Intervenor while permitting Protester's counsel to benefit from the technical expertise that is essential to the effective prosecution of this protest.
C. Individuals NOT Proposed for Admission
For the avoidance of doubt, the following members of the Calderwood & Harkness LLP engagement team will not be admitted under the protective order and will have no access to protected materials:
Ian Blackwood — Billing Partner, Calderwood & Harkness LLP. Mr. Blackwood's role on this engagement is limited to billing, engagement administration, and client relationship management. He does not participate in the substantive legal work on the protest and has no need to access protected materials.
Alan Burke — Lead Associate, Calderwood & Harkness LLP. Mr. Burke handles International Traffic in Arms Regulations ("ITAR") and Export Administration Regulations ("EAR") compliance analysis based on non-protected information available in the public record and from the Protester's own files. He will receive only redacted and non-protected materials and will not have access to any protected information.
Sara Hendricks — Working Associate, Calderwood & Harkness LLP. Ms. Hendricks provides legal research and document review support limited to non-protected materials. She will not have access to any protected materials or information.
Furthermore, no employee, officer, or director of Whitmore Aerospace LLC will have access to protected materials under this protective order. Protester's counsel will maintain strict information barriers between admitted individuals and all non-admitted persons, including Whitmore's management and competitive decision-makers.
VI. CERTIFICATION OF COMPLIANCE
Each person proposed for admission under the protective order will execute a Protective Order Acknowledgment form, in the form prescribed by GAO or as attached to the proposed protective order in Exhibit A, prior to accessing any protected materials. Each acknowledgment form will be filed with GAO and served on the Agency and Intervenor.
Undersigned counsel hereby certifies, pursuant to 4 C.F.R. § 21.4 and applicable rules of professional responsibility, as follows:
1. None of the proposed admitted individuals — Claudia Merritt, Lt. Col. (Ret.) Nathan Yardley, Megan Zhao, or Janet K. Overmeyer — has a financial interest in the outcome of Contract No. FA8222-23-D-0193 or Solicitation No. FA8222-23-R-0087, other than through the attorney-client or consultant relationship with Whitmore Aerospace LLC in connection with this protest proceeding.
2. Each proposed admitted individual understands and accepts the obligation to protect the confidentiality of all materials designated as protected under the protective order, and each individual has been informed of the terms, conditions, and potential sanctions associated with the protective order.
3. Counsel for the Protester will establish and maintain comprehensive procedures to ensure full compliance with the protective order throughout the pendency of this proceeding and thereafter, including:
(a) Secure physical storage of all paper copies of protected materials in a locked file cabinet or safe at Calderwood & Harkness LLP's offices at 1750 K Street NW, Suite 1100, Washington, D.C. 20006, accessible only to admitted individuals;
(b) Secure electronic storage of all electronic copies of protected materials on access-restricted, encrypted, password-protected systems maintained by Calderwood & Harkness LLP;
(c) Maintenance of an access log recording each instance of access to protected materials by admitted individuals, including the date, time, identity of the individual, and description of the materials accessed;
(d) Strict prohibition on the communication of protected material, or the substance thereof, to any non-admitted person, including all Whitmore Aerospace LLC employees, officers, and directors; and
(e) Upon conclusion of the proceeding, return or destruction of all protected materials and filing of certifications of compliance with GAO and the producing parties.
VII. NOTICE TO AGENCY AND INTERVENOR
In accordance with 4 C.F.R. § 21.4 and GAO's procedural requirements, a copy of this Application for Protective Order, together with the attached Exhibits A and B, is being served simultaneously on the following parties by electronic filing through GAO's Electronic Protest Docketing System ("EPDS") and by electronic mail:
Agency Counsel:
Captain Lucas M. Hargrove, USAF, JAG Trial Attorney Air Force Life Cycle Management Center (AFLCMC) Sensors Directorate Wright-Patterson Air Force Base, Ohio 45433
Email: lucas.hargrove@us.af.mil
Miriam T. Castellano Senior Attorney Office of the General Counsel (SAF/GCQ) Department of the Air Force 1740 Air Force Pentagon Washington, D.C. 20330-1740
Email: miriam.castellano@us.af.mil
Intervenor's Counsel:
Theodore J. Dunaway Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102
Email: tdunaway@kpdlaw.com
Counsel for Intervenor Halcyon Defense Systems Inc.
The Agency and Intervenor are respectfully invited to submit any objections to the proposed admissions or to the terms of the proposed protective order within the timeframe established by GAO's applicable procedures. If the Agency or Intervenor objects to the admission of any proposed individual — in particular, if either party has concerns regarding the admission of Ms. Overmeyer given her prior proposal involvement — Protester requests the opportunity to be heard on any such objections before GAO rules on this application.
VIII. REQUEST FOR RELIEF
For the foregoing reasons, Protester Whitmore Aerospace LLC, through its undersigned counsel, respectfully requests that the Government Accountability Office issue a standard protective order in this matter that provides as follows:
1. Governing the Handling of Protected Information. The protective order shall govern the handling, use, disclosure, storage, and ultimate disposition of all proprietary, confidential, and source selection sensitive information contained in the Agency Report and all subsequent filings in GAO Case No. B-422187; B-422187.2, in accordance with the terms and provisions set forth in the proposed order attached as Exhibit A.
2. Admission of Designated Individuals. The following four individuals shall be admitted under the protective order and authorized to access protected materials:
(a) Claudia Merritt, Partner, Calderwood & Harkness LLP;
(b) Lt. Col. (Ret.) Nathan Yardley, Of Counsel, Calderwood & Harkness LLP;
(c) Megan Zhao, Senior Associate, Calderwood & Harkness LLP; and
(d) Janet K. Overmeyer, Principal, Ridgeline Consulting Group LLC (subject to the heightened safeguards described in Section V.B above).
3. Marking Requirements. All parties shall be required to mark protected materials in accordance with the protective order's marking conventions, clearly designating all documents containing protected information as "PROTECTED MATERIAL — SUBJECT TO PROTECTIVE ORDER — B-422187; B-422187.2" on each page.
4. Return or Destruction. The protective order shall require the return or destruction of all protected materials upon the conclusion of the protest proceeding, with written certification of compliance by each admitted individual within thirty (30) days.
IX. SIGNATURE
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Claudia Merritt Responsible Partner Calderwood & Harkness LLP 1750 K Street NW, Suite 1100 Washington, D.C. 20006 Telephone: (202) 555-4100 Facsimile: (202) 555-4199
Email: c.merritt@calderwoodharkness.com
Counsel for Protester Whitmore Aerospace LLC
Date: October 12, 2023
EXHIBIT A
PROPOSED PROTECTIVE ORDER (STANDARD FORM)
UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE PROCUREMENT LAW DIVISION
PROTECTIVE ORDER
In the Matter of: Whitmore Aerospace LLC GAO Case No. B-422187; B-422187.2
Pursuant to 4 C.F.R. § 21.4, and upon consideration of the application filed by Protester Whitmore Aerospace LLC and any responses thereto, it is hereby ORDERED as follows:
1. Scope. This Protective Order governs the handling, use, disclosure, storage, and disposition of all information and documents designated as "Protected Material" in GAO Case No. B-422187; B-422187.2, relating to Solicitation No. FA8222-23-R-0087 and Contract No. FA8222-23-D-0193 issued by the Air Force Life Cycle Management Center (AFLCMC), Sensors Directorate.
2. Definition of Protected Material. "Protected Material" means any proprietary, confidential, source selection sensitive, trade secret, or other non-public information, in any form, that is designated as protected by any party or by GAO, including but not limited to: source selection documents, evaluation records, proposal excerpts, cost and pricing data, organizational conflict of interest materials, and any other information that the producing party reasonably believes would cause competitive harm or prejudice if disclosed beyond the admitted individuals.
3. Admitted Individuals. Only the following individuals, who have executed the Protective Order Acknowledgment form attached hereto, are authorized to access Protected Material:
(a) Claudia Merritt, Partner, Calderwood & Harkness LLP
(b) Lt. Col. (Ret.) Nathan Yardley, Of Counsel, Calderwood & Harkness LLP
(c) Megan Zhao, Senior Associate, Calderwood & Harkness LLP
(d) Janet K. Overmeyer, Principal, Ridgeline Consulting Group LLC
No other person, including any employee, officer, or director of Whitmore Aerospace LLC, shall have access to Protected Material.
4. Use Restriction. Protected Material shall be used solely for the purpose of this protest proceeding and any directly related proceedings. Protected Material shall not be used for any competitive, commercial, business development, proposal preparation, or other purpose.
5. Non-Disclosure. Admitted individuals shall not disclose Protected Material, or the substance thereof, to any person not admitted under this Order. This prohibition applies to all forms of communication, including oral, written, and electronic.
6. Marking. All documents containing Protected Material shall be clearly marked on each page: "PROTECTED MATERIAL — SUBJECT TO PROTECTIVE ORDER — B-422187; B-422187.2."
7. Storage. Protected Material in paper form shall be stored in a locked cabinet or safe at Calderwood & Harkness LLP, 1750 K Street NW, Suite 1100, Washington, D.C. 20006. Electronic copies shall be stored on secured, access-restricted, encrypted systems.
8. Filing with GAO. Any party filing documents with GAO that contain Protected Material shall file such documents in accordance with GAO's procedures for the submission of protected materials, including any required separate filing or redaction.
9. Return or Destruction. Within thirty (30) days after the conclusion of this proceeding, each admitted individual shall destroy or return all Protected Material, including copies, notes, extracts, and work product incorporating Protected Material, and shall certify compliance in writing to GAO and to the producing party.
10. Sanctions. Violation of this Protective Order may result in sanctions, including referral to applicable bar disciplinary authorities, exclusion from future admission under GAO protective orders, and such other remedial or punitive measures as the Comptroller General deems appropriate.
11. Duration. This Protective Order shall remain in effect from the date of issuance until the later of: (a) thirty (30) days after the final resolution of this protest proceeding (including any request for reconsideration), or (b) completion of the return or destruction of all Protected Material and certification thereof.
SO ORDERED this __ day of ____, 2023.
________________________________________
GAO Attorney Procurement Law Division U.S. Government Accountability Office
PROTECTIVE ORDER ACKNOWLEDGMENT
I, the undersigned, hereby acknowledge that I have read and understand the Protective Order issued in GAO Case No. B-422187; B-422187.2. I agree to be bound by all terms and conditions of the Protective Order. I understand that violation of the Protective Order may subject me to sanctions, including referral to applicable bar disciplinary authorities.
Name: ________
Title/Position: ________
Organization: ________
Date: ________
Signature: ________
EXHIBIT B
BIOGRAPHICAL INFORMATION AND BAR ADMISSIONS FOR PROPOSED ADMITTED INDIVIDUALS
1. Claudia Merritt
Position: Partner, Calderwood & Harkness LLP
Address: 1750 K Street NW, Suite 1100, Washington, D.C. 20006
Bar Admissions:
• District of Columbia Bar, No. 487621 (admitted 2005)
• Virginia State Bar, No. 76903 (admitted 2004)
Practice Areas: Government Contracts; Complex Civil Litigation; Bid Protests (GAO, COFC, Federal Circuit). Ms. Merritt's practice focuses on the representation of aerospace and defense contractors in all phases of the federal procurement process, including pre-award advisory work, bid protests, contract performance disputes, and claims litigation. She has represented clients in over seventy GAO bid protest proceedings and has argued appeals before the U.S. Court of Appeals for the Federal Circuit. Prior to joining Calderwood & Harkness, Ms. Merritt served as an Associate General Counsel at a Fortune 500 defense contractor. Ms. Merritt also maintains a cross-practice in banking and finance regulatory matters.
Competitive Interest: Ms. Merritt has no financial interest, direct or indirect, in Whitmore Aerospace LLC, Halcyon Defense Systems Inc., Marlowe Asset Management Electro-Optics Corp., or the IRCM pod assembly procurement. Her sole interest in this proceeding is as legal counsel to the Protester.
2. Lt. Col. (Ret.) Nathan Yardley
Position: Of Counsel, Government Contracts Practice Group, Calderwood & Harkness LLP
Address: 1750 K Street NW, Suite 1100, Washington, D.C. 20006
Bar Admission:
• Virginia State Bar, No. 82456 (admitted 2009)
• Admitted to practice before GAO, Procurement Law Division
Practice Areas: Government Contracts; Federal Procurement Law; Bid Protests; Source Selection Advisory. Lt. Col. (Ret.) Yardley is a retired U.S. Air Force Judge Advocate General's Corps officer who served over twenty years on active duty, including assignments as legal advisor to source selection authorities at Air Force Materiel Command and AFLCMC and as procurement counsel to major weapons system acquisition programs. Since joining Calderwood & Harkness in 2019, he has served as lead counsel or subject matter expert in over thirty GAO bid protest proceedings, with particular expertise in source selection methodology, FAR Part 15 competitive negotiations, and organizational conflict of interest analysis. He has extensive familiarity with infrared countermeasure programs from his military service, though he has never been involved in the specific procurement at issue in this case.
Competitive Interest: Lt. Col. (Ret.) Yardley has no financial interest, direct or indirect, in Whitmore Aerospace LLC, Halcyon Defense Systems Inc., Marlowe Asset Management Electro-Optics Corp., or the IRCM pod assembly procurement. His sole interest in this proceeding is as legal counsel to the Protester.
3. Megan Zhao
Position: Senior Associate, Litigation Practice Group, Calderwood & Harkness LLP
Address: 1750 K Street NW, Suite 1100, Washington, D.C. 20006
Bar Admissions:
• District of Columbia Bar, No. 1058743 (admitted 2017)
• New York State Bar, No. 5421089 (admitted 2016)
Practice Areas: Complex Civil Litigation; Government Contracts Litigation; Bid Protests. Ms. Zhao has experience representing government contractors and technology companies in high-stakes litigation matters, including bid protest proceedings before GAO and the Court of Federal Claims, False Claims Act investigations, and contract disputes before the Armed Services Board of Contract Appeals. She has served as a key member of litigation teams in several significant defense procurement protests and has experience analyzing source selection records, preparing protest comments, and drafting hearing memoranda.
Competitive Interest: Ms. Zhao has no financial interest, direct or indirect, in Whitmore Aerospace LLC, Halcyon Defense Systems Inc., Marlowe Asset Management Electro-Optics Corp., or the IRCM pod assembly procurement. Her sole interest in this proceeding is as legal counsel to the Protester.
4. Janet K. Overmeyer
Position: Principal, Ridgeline Consulting Group LLC
Address: 4501 Fairfax Drive, Suite 200, Arlington, Virginia 22203
Professional Background: Ms. Overmeyer is a nationally recognized expert in aerospace and defense manufacturing readiness assessment, with over twenty-five years of experience in defense acquisition engineering, production readiness reviews, and infrared and electro-optical countermeasure system development. Prior to founding Ridgeline Consulting Group LLC in 2015, she served as a senior systems engineer at a major defense prime contractor and as a Manufacturing Readiness Level assessor for the Department of Defense Manufacturing Technology ("ManTech") program. She holds a Master of Science degree in Aerospace Engineering from the Georgia Institute of Technology and a Bachelor of Science in Mechanical Engineering from Purdue University.
Prior Involvement in Whitmore's Proposal: As disclosed in Section V.B of this Application, Ms. Overmeyer, through Ridgeline Consulting Group LLC, assisted Whitmore Aerospace LLC in the preparation of its technical and management proposal volumes under Solicitation No. FA8222-23-R-0087. Her consulting support included articulation of Whitmore's manufacturing readiness approach, preparation of MRL assessment documentation, and review of the technical proposal narrative. Ms. Overmeyer was compensated on a fixed-fee consulting arrangement that is not contingent upon the contract award or the outcome of this protest proceeding.
Competitive Interest: Ms. Overmeyer has no ownership, equity, or financial interest in Whitmore Aerospace LLC, Halcyon Defense Systems Inc., or any other party to the procurement, other than the consulting fee arrangement described above. She will execute the Protective Order Acknowledgment form prior to accessing any protected materials and will comply with all safeguards described in Section V.B of this Application.
CERTIFICATE OF SERVICE
I, Claudia Merritt, counsel of record for Protester Whitmore Aerospace LLC, hereby certify that on this 12th day of October, 2023, a true and correct copy of the foregoing Protester's Application for Protective Order Pursuant to 4 C.F.R. § 21.4, together with Exhibit A (Proposed Protective Order — Standard Form) and Exhibit B (Biographical Information and Bar Admissions for Proposed Admitted Individuals), was served on the following parties by electronic filing through GAO's Electronic Protest Docketing System and by electronic mail:
Agency Counsel:
Captain Lucas M. Hargrove, USAF, JAG Trial Attorney Air Force Life Cycle Management Center (AFLCMC) Sensors Directorate Wright-Patterson Air Force Base, Ohio 45433
Email: lucas.hargrove@us.af.mil
Miriam T. Castellano Senior Attorney Office of the General Counsel (SAF/GCQ) Department of the Air Force 1740 Air Force Pentagon Washington, D.C. 20330-1740
Email: miriam.castellano@us.af.mil
Intervenor's Counsel:
Theodore J. Dunaway Kessler, Pratt & Dunaway LLP 8300 Greensboro Drive, Suite 950 Tysons, Virginia 22102