I. Small Business Act
The Small business Act provides that "for any contract to be let by any Federal agency, such agency shall provide to any small business concern upon its request . . . a copy of bid sets and specifications with respect to such contract." 15 U.S.C. § 637b.
The March 2, 1987 and July 27, 1988 requirements synopsized in the Commerce Business Daily were for entire torpedoes. See Declaration of Stephen Caracciolo, at para. 3. However, the plaintiff has conceded that it does not have the capability to supply the MK-46 torpedo. See Exhibit 1 to Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment and Defendant's Opposition to Plaintiff's Cross Motion for Summary Judgment (Aug. 5, 1988 Letter from Counsel for Colonial Trading Corporation to Wade Anderson of Naval Sea Systems Command) ("Colonial is unable to supply the MK-46 torpedo"). Rather, plaintiff is a self-described small business which manufactures and deals military and commercial spare parts. See Declaration of Harvison W. Hunt at para. 1; Plaintiff's Statement of Facts as to Which There is No Genuine Issue para. 1. Since plaintiff cannot build the entire torpedo, and in fact has no desire to build the entire torpedo,
it is not entitled to the corresponding data pursuant to 15 U.S.C. § 637b.
II. Competition in Contracting Act
The Competition in Contracting Act recognizes situations in which competitive procedures need not be used. See 10 U.S.C. § 2304(c)(1-7). In the instant case, the defendant invoked exception (c)(1) which provides that other than competitive procedures may be used when "the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency." 10 U.S.C. § 2304(c)(1).
As discussed earlier, the plaintiff does not have the capability to build the torpedo. Accordingly, the plaintiff can hardly challenge the reasonableness of the defendant proceeding sole source with the procurement pursuant to 10 U.S.C. § 2304(c)(1). If the plaintiff is unable to build the entire torpedo it logically cannot be considered as an alternative responsible source entitled to receive technical date on the procurement. The contention that the plaintiff should be allowed to obtain data and submit bids on a torpedo that the plaintiff concedes it cannot supply is patently without merit.
III. Freedom of Information Act
The plaintiff finally contends that it is entitled to the unclassified drawings under the Freedom of Information Act.
However, exemption 3 allows the withholding of information prohibited from disclosure by another statute provided that the statute "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3).
The defendant contends that it is entitled to withhold the unclassified drawings pursuant to exemption 3 because 10 U.S.C. § 130, and the DOD's implementing directive,
prohibits such disclosure. Section 130 allows:
the Secretary of Defense may withhold from public disclosure any technical data with military or space application in the possession of, or under the control of, the Department of Defense, if such data may not be exported lawfully outside the United States without an approval, authorization, or license under the Export Administration Act of 1979 (50 U.S.C. App. 2401-2420) or the Arms Export Control Act (22 U.S.C. 2751 et seq.).