Law360, New York (November26, 2014, 2:42 PM ET) -- A California federal court has ordered the Pentagon tocough up never-seen subcontracting data on Sikorsky Aircraft Corp. to anorganization representing small businesses, saying the information was notexempt from Freedom of Information Act disclosure because it did not exposeprivileged financial or business information about Sikorsky. 

In his order, U.S. DistrictJudge for the Northern District of California William Alsup told the U.S. Department of Defense ithad to release Sikorsky's Comprehensive Subcontracting Plan to the American SmallBusiness League by Dec. 3 or appeal his decision to the Ninth Circuit.

"We are thankful thatthe court rejected the vague 'confidential commercial or financial information'claim raised by the Department of Defense," ASBL attorney Robert Belshawtold Law360. "Hopefully the results of this decision will go a long waytowards revealing the extent to which large defense contractors are complyingwith the Small Business Act's mandate that women-, veteran- and minority-ownedsmall business subcontractors receive a fair share of the billions of federalfunds annually allocated to defense spending."

On Aug. 9, 2013, ASBL filedan FOIA request for Sikorsky's 2013 master Comprehensive Subcontracting Planfor participation in the Department of Defense's Comprehensive SubcontractingPlan Test Program, or CSPTP.

According to the ASBL'sbrief, the Small Business Act of 1953 would normally require large contractorsto submit individual subcontracting reports and summary subcontracting reportsto show how government contracts and subcontracts are being awarded to smallbusinesses.

However, since 1990, whenCongress passed the "test program" as part of a defense appropriations bill,some large defense contractors have been able to do away with these reports andinstead file comprehensive subcontracting plans, which are meant to identify"all subcontract amounts awarded to small businesses on all governmentcontracts the prime contractor fulfills," according to the ASBL.

The organization's FOIArequest sought access to Sikorsky's version of this document, to see if itdoes, indeed, show awarding of subcontracts to eligible small businesses.

The organization accusedthe test program of "eliminat[ing] all transparency on publicly available smallbusiness subcontracting information and any penalties for Pentagon primecontractors that failed to comply with federally mandated small businesssubcontracting goals" in a statement to Law360.

After the Pentagon placedthe ASBL's request in its complex processing queue, thus indefinitelypostponing the agency's response, the organization brought suit on May 12.

The ASBL then soughtsummary judgment on whether the documents it requested could be disclosed, "inwhole or in part." The DOD retorted that the organization's motion was mootbecause the agency had determined that the requested plan could not bereleased, applying the FOIA exemption for trade secrets and privileged orconfidential commercial or financial information.

As Judge Alsup noted, theagency did not attempt to apply any other FOIA exemptions in any of itspre-trial motions.

"Neither the lodgeddocument nor [Sikorsky's representative's] declaration adequately shows how theredacted information is 'likely to cause substantial competitive injury' ifdisclosed," Judge Alsup said.

Further, Judge Alsuprejected the DOD's raising of a second FOIA exemption after briefing, sayingthe contact information for Sikorsky staff was available online, and as such,amounted to a "trivial privacy interest" for which an FOIA exemption could notapply.

If the agency appeals, theASBL says it could open the door for the organization to access all othersimilar subcontracting plans and help it in its mission to uncover whethergovernment money is going to small businesses or merelybeing held up in larger businesses whose subsidiaries are"grandfathered in" under the law because they were acquired within the lastfive years.

"We have the opportunity toestablish some useful precedent in the Ninth Circuit," Belshaw told Law360."A favorable ruling by that court would definitely ease the way to gettingthese documents released."

Current participants in theCSPTP include the Boeing Co., BAESystems PLC, GE Capital Aviation Services, General Dynamics Corp., HamiltonSundstrand Corp., Harris Corp., L-3 CommunicationsHoldings Inc., Lockheed Martin Corp., Northrop Grumman Corp., United Technologies Corp.'saircraft engines subsidiary Pratt & Whitney, RaytheonCo., and Sikorsky.

According to the ASBL, theorganization promotes the interests of small businesses through socialmarketing and policy review along with monitoring federal contracts that areawarded to large corporations rather than to small businesses.

To view full Law360article, click here: http://www.law360.com/articles/599786/dod-must-give-sikorsky-contract-data-to-small-biz-group

Doing business with the U.S. government isalways a challenge. In addition to uncertain budgets, political infighting, andthe seemingly endless procurement terms of the Federal Acquisition Regulations(FARs), there are many other special provisions that come into play in governmentcontracting.

One of them is the small business set-asidepolicy designed to ensure that smaller companies can participate in federalcontracting along with larger companies and multibillion-dollar revenue giants.Federal agencies regularly issue requests for proposals (RFPs) that aretargeted exclusively to small firms. In addition, government contracts awardedto really large corporations often require that small firms get a fair share ofsubcontracting business.

Sounds like a simple solution -- but infederal contracting, nothing is simple and the Small Business Administration(SBA) has a formidable set of regulations covering the set-aside policy --starting with the question of deciding how small is "small" forset-aside purposes. Size standards vary by industry, including the informationtechnology sector.

Information Technology Resellers Targeted

The SBA is proposing to revise the sizestandards affecting Information Technology Value Added Resellers (ITVARs) --companies that provide hardware, software or both, as part of projects thatalso involve installation, systems integration and additional IT-relatedservices to federal agencies.

The hardware and software may be acquireddirectly by reseller firms from different vendors and then passed on to thegovernment within the context of adding value through an equipment and servicescontract package related to a federal project.

The ITVARS proposal is part of a number ofreforms covering many industries that SBA revealed in September in response toa 2010 congressional mandate to update business size criteria. More than 240industrial categories are covered in the proposal. SBA accepted comment on theproposals through Nov. 10.

For the IT resellers category, SBA proposedthat companies with more than US$27.5 million in annual revenue no longer beeligible for small business preferences. Under current standards, federalagencies can offer small business status to IT resellers with fewer than 150employees, even if revenues exceed the $27.5 million mark.

Some advocates for small businesses stronglyoppose the SBA reforms.

"This proposed change is a terriblemistake that would have extreme adverse consequences for many smallbusinesses," said Lars Anderson, an attorney with Venable, in comments tothe SBA on behalf of Wildflower International, a small woman-owned IT reseller.

By using the revenue ceiling, SBA wouldexclude a large number of small businesses from the federal IT reseller market,because many such firms could book federal revenues well in excess of theceiling, but essentially remain small operations in terms of number ofemployees.

"We are looking here at some highlyprofessional, qualified firms that provide efficient IT support to thegovernment with proven track records in terms of federal contract performance-- but they just operate with well under 150 employees, unlike the really bigplayers," Anderson told the E-Commerce Times.

The proposed change would impact smaller firmsunfairly, he contended.

The SBA proposal is warranted because theexisting size standards that involve references to both revenue and employeeshave creasted inconsistencies, confusion and misuse, the administration argued.

Contracting officers are not able to identifysize elements in a government data base, which leads to misunderstandings aboutset-aside goals, the SBA pointed out.

The use of employee counts instead of revenuesmay have negatively affected some small businesses, according to theadministration.

SBA Methodology Questioned

Questions have arisen over the documentationfor the SBA's proposal.

Census Bureau data was not used to tabulatecontract award information related to the 150-employee criteria, the SBAacknowledged.

The conclusion that the revenue standard andthe employee standard were about equivalent was based on 2007 data.

"That 2007 economic census data has norelevance to contracts awarded in 2014," Anderson said in his comments toSBA.

In certain categories specifically relatedeither to hardware or services, small business provisions will continue toapply, noted Lamar Whitman, director of public advocacy at TechAmerica.

However, there is a need for adequatedocumentation on the ITVARs proposal, he said.

"What happens if a firm sells a mix ofhardware and services? This is where the term 'value-added reseller' comes in.The SBA regulations carved out an exception for VARs which allows certainproviders to qualify as a small business if the contract in question iscomposed of at least 15 percent but not more than 50 percent of valued-addedservices, excluding hardware," Whitman told the E-Commerce Times.

As to SBA's rationale for its proposedmodification, "without specific data on the revenue typically generated bya 150-person VAR firm, this SBA argument is not supported," he said.

To view full article, click here: http://www.ecommercetimes.com/story/SBA-Proposal-Could-Change-Landscape-for-IT-Resellers-81369.html