January 9, 2017 – The following is a statement by the American Small Business League: 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 filed their case due to language in the 27 year old test program that removed all transparency regarding contract procurement, as well as all penalties for non-compliance with federal contracting law within the program. 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.
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.
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.”
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.
During the December 14th appeal, Judge Norman Randy Smith addressed the Pentagon regarding their lack of cooperation with the Court, stating: “You didn’t try, you just sent what you wanted.”
Despite the fact that the Pentagon and Sikorsky never complied with Judge Alsup’s order to make evidence available to establish the validity of their claims, Sikorsky continued to argue during the December 14th hearing that a detailed disclosure of their small business recruiting program and subcontracting reports would put them at a disadvantage to competitors.
“With this ruling the 9th circuit court of appeals has decided the American People do not have the right to see how the Pentagon’s top contractors have spent trillions in our tax dollars over the last 27 years,” said ASBL President Lloyd Chapman. “The ASBL is already working on appealing this case.”