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Appeals Court Rules No Transparency in Pentagon for 27 Years

ASBL Ninth Circuit Case Against Pentagon

The American Small Business League
January 11, 2017

PETALUMA, Calif., Jan. 11, 2017 /PRNewswire-USNewswire/ -- The San Francisco 9th Circuit Court of Appeals ruled against the American Small Business League's (ASBL) Freedom Of Information Act Request (FOIA) case against the Pentagon on 01/06/2017. The Pentagon appealed the case after they lost in the Federal district court of San Francisco following the ruling that Sikorsky Aviation Corporation disclose their most recent subcontracting plan submitted to the Pentagon's Comprehensive Subcontracting Plan Test Program (CSPTP).

The ASBL estimates that over $5 trillion dollars in undisclosed federal contracts have been administered through the CSPTP since its inception in 1989. By seeking disclosure of Sikorsky Aviation Corporations participation in the CSPTP, the ASBL sought to reveal evidence that the program allowed the Pentagon's largest prime contractors to circumvent small business subcontracting goals without penalty, costing small businesses trillions of dollars.

The ASBL originally won their FOIA case against the Pentagon in November of 2014. Federal District Court Judge William Alsup ordered the Pentagon to release the Sikorsky data to the ASBL after reviewing the information and deducing nothing in the report constituted as trade secret, proprietary or confidential financial information.

In his ruling, Judge Alsup described the ASBL as being an underdog in a David and Goliath battle against the "big company" and against the "big government." He also accused the Pentagon of "covering it up" in reference to the information the ASBL requested. In a subsequent hearing, Judge Alsup accused the Pentagon and Sikorsky of trying to "suppress the evidence."

Professor Charles Tiefer, a leading expert on federal contracting law, has written a legal opinion corroborating the ASBL's case, calling the CSPTP a "sham" and "seriously  harmful" to small businesses.

During the District Court case, Judge Alsup instructed the Pentagon and Sikorsky on two separate occasions to "highlight the parts that are supposedly confidential" or that they believed were proprietary and explain why they believed the information should be exempt. The Pentagon declined to comply with Judge Alsup's request.

Despite the 9th Circuit Court having never seen the documents on which Judge Alsup based his verdict, the Court of Appeals overruled Judge Alsup in favor of Sikorsky, rendering Sikorsky exempt from having to provide proof of compliance with federal contracting law while participating in the CSPTP.

"This is a landmark decision," said ASBL President Lloyd Chapman. " The Pentagon cannot account for $6.5 trillion in expenditures and this ruling facilitates more of this astounding abuse. We don't know how trillions of our tax dollars have been spent for the last 27 years and we may continue to not know for the next 27 years. The ASBL is already working on appealing this case."

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