Mar 13, 2019   SOURCE: BusinessWire

Federal Judge Sets Up Trial to Release Internal Pentagon Emails In FOIA Case

A five-year legal battle between the American Small Business League (ASBL) and the Pentagon will finally go to trial as Federal District Court Judge William Alsup rules the Pentagon must release more internal emails between its attorneys and prime government contract holder Sikorsky Aircraft. The trial could impact a decades-old practice at the Department of Defense of stifling small businesses contracting opportunities and the jobs that they create.

“Emails that have already been released indicate Pentagon attorneys told Sikorsky they had a weak defense in the case and their witnesses lacked credibility,” said ASBL President Lloyd Chapman. “We welcome the opportunity to go to trial and question the defense contractor executives about how their arcane practices are stifling small business opportunities with the U.S. government.”

ASBL originally requested the 27-page small business subcontracting plan by Sikorsky Aircraft that was submitted to the Pentagon’s Comprehensive Subcontracting Plan Test Program (CSPTP) back in 2012. The Pentagon adopted the CSPTP in 1989 to “test” the impact of two actions on subcontracting opportunities for small businesses: 1) keeping company-wide small business subcontracting plans secret and 2) eliminating penalties for non-compliance with small business subcontracting goals. Prior to the adoption of the CSPTP small business subcontracting plans were publicly available and prime contractors faced Liquidated Damages for failure to comply with their small business subcontracting goals. The Pentagon will continue to “test” the program until 2027.

“The Pentagon is obviously trying to hide the fact that the Comprehensive Subcontracting Plan Test Program has created a massive loophole in federal contracting laws that has significantly reduced opportunities for small businesses,” said Chapman, who has won over 100 legal battles against the government on behalf of small businesses. “It’s unimaginable that the Pentagon should be allowed to exploit this blatant anti-small-business loophole for years to come.”

The Small Business Act of 1953 mandates that 23 percent of all prime contracts go to small businesses. Federal investigations and investigative reports by CNN, ABC, NBC, CBS and Fox News have exposed numerous cases of small business contracting violations - and FOIA violations to cover up these actions - by the federal government.

To date the Pentagon has not released evidence showing that the CSPTP achieves the goal of helping small businesses. On the contrary, a recent report shows that - since implemented - the CSPTP has “reduced their small business industrial supplier base” and reduced subcontracts to small businesses by as much as 50 percent. And experts similarly described the program as a “sham.”

Since 2012, the case has garnered strong opinions from Judge Alsup who described the ASBL legal battle with the statement, “So it would be more like a David and Goliath. You get to come in there and be the underdog again against the big company and against the big government.” In describing the Pentagon’s position in the case Judge Alsup stated, “They are trying to suppress the evidence...”

“The purpose of the Freedom of Information Act is so the public can see how our government works,” said Judge Alsup in another hearing in the case. “Congress passed this law to make small businesses have access to some of these projects, and here is the United States covering it up.”

The trial to determine if the Justice Department and the Pentagon can continue to withhold emails to Sikorsky under exemption four of the Freedom of Information Act and potentially impact the continued implementation of the CSPTP is expected to take place this fall.