By Kurt Orzeck
Law360, Los Angeles
(December 04, 2014, 6:08 PM ET) -- A California federal judge on Wednesday
delayed his order requiring the Pentagon to cough up never-seen subcontracting
data on Sikorsky Aircraft Corp. after the Solicitor General intervened and
asked for a 60-day stay, according to a small-business group seeking the
U.S. District Judge for the
Northern District of California William Alsup had ordered
the Pentagon to release Sikorsky’s Comprehensive Subcontracting Plan to the
American Small Business League by Wednesday, but he granted the U.S. Department of Defense’s
request for a stay until Jan. 22, while the Solicitor General considers a
possible appeal, court papers said.
ASBL says the information
will show the extent to which large defense contractors are complying with the
Small Business Act's mandate that women-, veteran- and minority-owned small
business subcontractors receive a fair share of the billions of federal funds
annually allocated to defense spending.
In August 2013, ASBL filed
a Freedom of Information Act request for Sikorsky’s 2013 master Comprehensive
Subcontracting Plan for participation in the Department of Defense’s
Comprehensive Subcontracting Plan Test Program, or CSPTP.
ASBL President Lloyd
Chapman said in a Thursday statement that “this information is so explosive it
will block the renewal of the CSPTP in the 2015 National Defense Authorization
Bill. I predict the Pentagon will do whatever it takes to withhold the release
of this information until after Congress has renewed the program.”
Late last month, Judge
Alsup determined that the information was not exempt from FOIA disclosure
because it did not expose privileged financial or business information about
The DOD replied on Tuesday
that a stay of the court’s disclosure order was necessary “to avoid the
irreparable harm that would result if the government is forced to disclose its
documents to the public before it has the opportunity to pursue its appellate
While Judge Alsup granted
the agency’s request for a stay on Wednesday, he said that, if the DOD wants an
additional extension beyond Jan. 22, it would have to ask the court of appeals.
According to the ASBL, the
Small Business Act of 1953 would normally require large contractors to submit
individual subcontracting reports and summary subcontracting reports to show
how government contracts and subcontracts are being awarded to small
However, since 1990, when
Congress passed the “test program” as part of a defense appropriations bill,
some large defense contractors have been able to do away with these reports and
instead file comprehensive subcontracting plans, which are meant to identify
“all subcontract amounts awarded to small businesses on all government
contracts the prime contractor fulfills,” according to the ASBL.
The organization’s FOIA
request sought access to Sikorsky’s version of this document, to see if it
does, indeed, show awarding of subcontracts to eligible small businesses.
The organization accused
the test program of “eliminat[ing] all transparency on publicly available small
business subcontracting information and any penalties for Pentagon prime
contractors that failed to comply with federally mandated small business
subcontracting goals” in a statement to Law360.
After the Pentagon placed
the ASBL’s request in its complex processing queue, thus indefinitely
postponing the agency’s response, the organization brought suit on May 12.
If the agency appeals, the
ASBL says it could open the door for the organization to access all other
similar subcontracting plans and help it in its mission to uncover whether
government money is going to small businesses or merely being held
up in larger businesses whose subsidiaries are “grandfathered
in” under the law because they were acquired within the last five years.
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