WASHINGTON, Nov. 20, 2017 /PRNewswire/ -- The American SmallBusiness League (ASBL) has won release of most of the 2013 SikorskyAircraft Corporation small business subcontracting plan (plan) filed with theDepartment of Defense (DOD), after a four year Freedom of Information Actbattle.   Most of the plan was released November10, following the Justice Department's October 12notification to the U.S. District Court in SanFrancisco that it would no longer defendDOD-Sikorsky's efforts to withhold the information. 

Jonathan W. Cuneo,partner at Washington, DCbased Cuneo Gilbert & LaDuca, LLP, and ASBL'sattorney, explained:   "Plaintiff's discovery that the tradesecrets defense is seemingly   unsupportable raises the question asto whether the defendants acted in good faith.  I believe somebody is lying.Apparently, either the government knew all along that trade secrets were not atrisk or the government was misled by Sikorsky.  Why was this costly,lengthy litigation even necessary?"

"The most significant revelation in this case is that we'veexposed the fact the Pentagon and its prime contractors have shortchanged smallbusinesses and small businesses owned by women, minorities and service disabledveterans out of hundreds of billions in subcontracts," said ASBL PresidentLloyd Chapman

The Sikorsky plan was filed with DOD under the controversialComprehensive Subcontracting Plan Test Program (CSPTP), which is supposed tobuild new opportunities for small businesses.

"The Pentagon issued a report in November of 2015 thatacknowledged the CSPTP had actually cut contracts to small businesses by over50 percent. The data we have uncovered in this case indicates subcontracts tosmall businesses have been slashed by as much as 90 percent," Mr. Chapmansaid.

University of BaltimoreLaw Professor and government contracting expert CharlesTiefer is not surprised.  Professor Tiefer, a formerSolicitor and Deputy General Counsel of the U.S. House of Representatives whoalso served as Commissioner on the congressionally mandated IndependentCommission on Wartime Contracting, has called CSP a "sham."

Professor Tiefer, who examined the Sikorsky plan, focused on thecompany's socio-economic subcategories within the target small businesscommunity:  "Sikorsky admitted lowering many of its goals forwomen-owned, veterans-owned and similar subcontractor categories.  Forexample, it admitted its veterans-owned goal 'is lower' and fellbelow even 1 percent, down to 0.9 percent, a pittance."

With its principal office in Washington,DC, Cuneo Gilbert& LaDuca, LLP represents clients in a range of civil justice andlegislative matters including civil and human rights, antitrust, consumerprotection, product liability and securities and intellectual property.

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WASHINGTON, Oct. 30, 2017/PRNewswire-USNewswire/ -- Stunning information revealed duringdepositions in a four year long Freedom of Information Act (FOIA) battle led the Department of Justice (DOJ) tolargely abandon defending the Department of Defense (DOD) against a lawsuitseeking information about Sikorsky Aircraft Corporation's (Sikorsky) smallbusiness subcontracts.  A key assertion by Sikorsky that releasingmaterials it filed with DOD would reveal trade secrets is unsupportable, DOJapparently determined.  Accordingly, DOJ notified the Court andco-defendant Sikorsky on October 12 that DODintends to release most of the requested information on November6.  The December 11 trial has beenpostponed.

The American Small Business League (ASBL)initially sought Sikorsky's small business subcontracting plan in an August 2013 Freedom of Information Act filing.  WhenDOD refused, Sonoma, CAbased ASBL filed suit in the U.S. District Court in SanFrancisco in 2014.  In an early hearing, JudgeWilliam Alsup on November6, 2014 said:  "The purpose of the Freedom ofInformation Act is so the public can see how our government works. Congresspassed this law to make small businesses have access to some of these projects,and here is the United States covering it up."

"We whole-heartedly agreed with Judge Alsup then and nowwelcome the unraveling of that cover-up," said LloydChapman, ASBL's president. "We believe the covered-upinformation will help expose the fact that the Pentagon and its largest primecontractors have used the Comprehensive Subcontract Plan TestProgram to cheat small business out of hundreds of billions in subcontractssince the program began in 1989."

"Some of the information we seek had actually been postedon government web sites and issued in press releases by Sikorsky,"explained Jonathan W. Cuneo, partner of Washington, DC-based Cuneo Gilbert & LaDuca, LLP, representingASBL.  "The defendants hid behind a spurious trade secrets claim forfour years.  Ironically, this case involves information with no nationalsecurity sensitivity about a single source, non-competitive Defense Departmentcontract."  

Among facts undermining Sikorsky's trade secrets defense is an expert report by former FAA officialDavid Downey who said information about Sikorsky'ssubcontractors is "widely" available in the industry.

For the full story, click here: https://www.prnewswire.com/news-releases/cuneo-gilbert--laduca-llp-doj-retreats-on-defense-of-pentagon-sikorsky-case-in-upcoming-trial-300545226.html

Alawsuit by the American Small Business League, heading for trial, is suggestingthat a Defense Department program intended to promote small businesssubcontracting may well be conducted in a deceitful way.

Discoveryin the lawsuit ― against the Defense Department and Sikorsky, amajor helicopter maker ― has suggested that major defensecontractors manipulate data to falsely claim they are meeting their smallbusiness subcontracting targets. Over its lifetime, then, the program wouldfail to provide promised small business subcontracting on hundreds of billionsof federal contracting dollars. Small business would lose out on theopportunities that Congress and the public want small business to get.

TheASBL and its president, Lloyd Chapman, seek the program's records under theFreedom of Information Act. Ahead of the trial, set for December, the ASBL hasobtained documents and depositions about Sikorsky's defense contracting.

The ASBL discovery and other information point to one waycontractors can evade their subcontracting obligations.

Aprime contractor may commit to the government to meet a goal that, say, 30% ofits subcontracting will go to small business. And it may report that it did soin the first half of 2017. But what the contractor actually does may be termeda sham pass-through. The prime contractor picks out some large contractors towhich it wishes to subcontract important products for installation in itshelicopters, planes or other products for its prime contract. Then the primecontractor gets a small company to agree for some nominal fee (like1%) to "buy" the product from the large contractor and then turn around,without doing any work, and "sell" the product to the prime contractor. All thesmall company has to do is sign a contract and some receipts.

Theprime contractor then lists the full percentage of products bought through suchsham pass-throughs as qualifying as subcontracting to small business.

Infact, the prime contractor can take this one phony step further. The smallcompany chosen as the sham pass-through may qualify as one of the specializedkinds of small business that have special federal assistance programs, likewomen-owned small business or service-disabled veteran-owned small business.In that case, the prime contractor may have the cheek to count the phony smallbusiness subcontracting as compliance with its duties for those special federalassistance programs.

Wheredoes the Defense Department program, traditionally known as the ComprehensiveSubcontracting Plan Test Program, come in?

Again,the ASBL discovery and other information suggest the Test Program reducesthe specificity and transparency of large contractor reporting of assertedsmall business subcontracting. This, in turn, emboldens the large contractorsto conduct a phony system. For example, much of Sikorsky's sales to thegovernment are sole source, meaning Sikorsky has no competitors. Sole sourcingmeans Sikorsky has no legitimate fear that disclosing its small business subcontractingfigures for the sole-sourced products would give an advantage to its(non-existent) competitors. Yet Sikorsky has tried to keep its informationsecret, conveniently veiling its claims about its asserted small-businesssubcontracting.

Underthe program, large contractors need not plan or report on individual contracts;they can just create a vague overall plan for their nationwide contracting.With so little transparency, the small business subcontracting may occur onlyon a sham basis, if that small business subcontracting occurs at all.

TheASBL has calculated that the Pentagon may have deprived small business ofsubcontracting on $2 trillion since the program was started in 1989. Andunfortunately, under the 2017 National Defense Authorization Act, theprogram was extended to 2027. This would bring the so-called test, supposedlyan experimental program, to its 38^th year, which hasto be some kind of unfortunate record for a test program.

In a previous round ofthis case, in November 2014, the trial judge, William Alsup, accused thePentagon and Sikorsky of trying to "suppress the evidence." He instructed thePentagon and Sikorsky on two separate occasions to "highlight the parts thatare supposedly confidential" or that they believed were proprietary and toexplain why they believed the information should be exempt.

WhenJudge Alsup ruled for the ASBL, the Ninth Circuit reversed the decision. But itdid not end or even stall the case, sending it back to Judge Alsup fordiscovery and trial. Judge Alsup's order allowing ASBL to depose Sikorsky andPentagon witnesses in the case indicates that the case is going forward. So themask of the program may finally be removed.

For the full article, clickhere: https://www.forbes.com/sites/charlestiefer/2017/08/15/spuriously-conducted-federal-subcontracting-program-revealed-in-sikorsky-case/2/#2e5f7a754041