SAN FRANCISCO — The American Small Business
League lost an appeal on Jan. 6 in the U.S. Court of Appeals for the 9th
Circuit in San Francisco in an attempt to show evidence of reduced
subcontracting opportunities for small businesses in Pentagon contracts.
In the Freedom of Information Act Request
case, according to a news release, the ASBL sought to have Sikorsky Aviation
Corporations disclose its subcontracting plan that it submitted to the
Pentagon's 27-year-old Comprehensive Subcontracting Plan Test Program. ASBL was
contesting the transparency of the Pentagon’s contract procurement and wanted
to prove that the CSPTP program has cheated small businesses out of more than
In November 2014, the ASBL a won its original
FOIA case against the Pentagon in federal district court. Judge William Alsup
determined Sikorsky’s CSPTP information had no trade secret or proprietary or
confidential financial information, and ruled that Sikorsky had to provide
evidence of compliance with federal contract law.
Alsup also accused the Pentagon of covering up
the information, and later accused the Pentagon and Sikorsky of trying to
The appellate court overruled Alsup in favor
of Sikorsky, even though it never saw the documents on which Alsup based his
“The 9th Circuit Court of Appeals made a huge
mistake,” ASBL President Lloyd Chapman told the Northern California Record.
“Judge Alsup had Sikorsky’s documents and decided nothing constitutes a trade
secret or is proprietary, and even accused the Pentagon of fraud. How can the
9th Circuit Court overrule the district court if it has never seen the
documents? It’s lunacy.”
“It is a serious setback for small businesses
of getting a piece of the federal contracting pie,” Charles Tiefer, professor
of contracting government at the University of Baltimore School of Law, told
the Northern California Record. “This opinion will make it harder for
small businesses to challenge the federal monopoly of federal contracts. It
will make it only too easy for big defense contractors like Sikorsky to dodge
their responsibilities to subcontractors with worthy small businesses.”
Tiefer, who was commissioner in 2008-2011 of
the Commission on Wartime Contracting, has written a legal opinion corroborating
the ASBL's case, in which he calls the CSPTP "seriously harmful" to
“It is obvious that big defense contractors
like to keep profit to themselves and allow little for other small businesses,”
Tiefer said. “Every contractor has to have a subcontracting plan and contract
with small businesses. For understanding government contracting, ASBL wanted
disclosure of Sikorsky. Sikorsky is supposed to subcontract to small businesses
the parts and skilled labor. It is part of the supply chain.”
Chapman said the case removes all transparency
from the last 27 years of the Pentagon’s harmful federal-contract activities.
“The taxpayers don’t know how $5 trillion of
their tax dollars have been spent for the last 27 years,” he said.
The ASBL is planning to appeal the case,
according to the news release.
“The CSPTP program says you don’t need a plan
for each contract—you can have a national plan,” Tiefer said. “I don’t believe
there are numerical quota requirements, so you’re just citing a national plan.
There is no way to check a contract. The ASBL wanted to see these plans and
show they are window dressing, providing a curtain to contractors to monopolize
or pick and choose the subcontractor that will give them the most profit.”
For the full article, click here: http://norcalrecord.com/stories/511077832-appeals-court-rules-against-small-business-group-in-transparency-case-over-pentagon-contracts