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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 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 information.


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 Sikorsky. 


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 rights."


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 businesses.


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.


To view full Law360 article, click here: http://www.law360.com/articles/601667/solicitor-gen-stalls-dod-release-of-sikorsky-contract-data




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