Solicitor Gen. Stalls DOD Release Of Sikorsky Contract Data
By Kurt Orzeck
December 4, 2014
By Kurt Orzeck
Law360, Los Angeles(December 04, 2014, 6:08 PM ET) -- A California federal judge on Wednesdaydelayed his order requiring the Pentagon to cough up never-seen subcontractingdata on Sikorsky Aircraft Corp. after the Solicitor General intervened andasked for a 60-day stay, according to a small-business group seeking theinformation.
U.S. District Judge for theNorthern District of California William Alsup had orderedthe Pentagon to release Sikorsky's Comprehensive Subcontracting Plan to theAmerican Small Business League by Wednesday, but he granted the U.S. Department of Defense'srequest for a stay until Jan. 22, while the Solicitor General considers apossible appeal, court papers said.
ASBL says the informationwill show the extent to which large defense contractors are complying with theSmall Business Act's mandate that women-, veteran- and minority-owned smallbusiness subcontractors receive a fair share of the billions of federal fundsannually allocated to defense spending.
In August 2013, ASBL fileda Freedom of Information Act request for Sikorsky's 2013 master ComprehensiveSubcontracting Plan for participation in the Department of Defense'sComprehensive Subcontracting Plan Test Program, or CSPTP.
ASBL President LloydChapman said in a Thursday statement that "this information is so explosive itwill block the renewal of the CSPTP in the 2015 National Defense AuthorizationBill. I predict the Pentagon will do whatever it takes to withhold the releaseof this information until after Congress has renewed the program."
Late last month, JudgeAlsup determined that the information was not exempt from FOIA disclosurebecause it did not expose privileged financial or business information aboutSikorsky.
The DOD replied on Tuesdaythat a stay of the court's disclosure order was necessary "to avoid theirreparable harm that would result if the government is forced to disclose itsdocuments to the public before it has the opportunity to pursue its appellaterights."
While Judge Alsup grantedthe agency's request for a stay on Wednesday, he said that, if the DOD wants anadditional extension beyond Jan. 22, it would have to ask the court of appeals.
According to the ASBL, theSmall Business Act of 1953 would normally require large contractors to submitindividual subcontracting reports and summary subcontracting reports to showhow 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.
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 merely being heldup in larger businesses whose subsidiaries are "grandfatheredin" under the law because they were acquired within the last five years.
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