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M/WBE Availability in the City of Cleveland’s Market Area
IV. M/WBE Availability in the City of Cleveland’s Market Area
A. Introduction
Estimates of M/WBE availability are an important element of a disparity study since they
provide benchmarks for assessing the effectiveness of the City of Cleveland’s efforts to
encourage M/WBE participation in public contracting and procurement. Furthermore, they
provide a means by which to establish goals for M/WBE participation that are tailored to the
City’s relevant market area.
Many approaches to estimating availability suffer from internal inconsistency since the data
employed to construct the availability numerator (i.e., the total number of M/WBE
establishments in the market area) are measured differently than the data employed to construct
the availability denominator (i.e., the total number of establishments in the market area). For
example, the numerator might be drawn from an agency’s internal list of certified M/WBEs
while the denominator might be drawn from Census data. Since the methods used to identify and
certify firms as M/WBEs are different from the methods used by the Census Bureau to count
business establishments, such approaches inevitably compare “apples to oranges.”
In this Study, we employ a method for measuring availability that ensures an “apples to apples”
comparison between the availability numerator and denominator. This “Custom Census” method
was pioneered by NERA and has been favorably reviewed by each court that has examined it to
date. The Tenth Circuit found the custom census approach to be “a more sophisticated method to
calculate availability than the earlier studies.” 205 Likewise, this method was successful in the
defense of the DBE programs for Minnesota DOT 206 and Illinois DOT, 207 as well as the M/WBE
construction program for the City of Chicago. 208
In addition to its favorable reception in the courts, when properly executed, the Custom Census
method is superior to other approaches for at least three reasons. First, it provides an internally
consistent and rigorous “apples to apples” comparison between establishments in the availability
numerator and those in the denominator. Second, it comports with the remedial nature of most
M/WBE policies by measuring overall M/WBE availability in the relevant market area as
opposed to only those businesses currently certified by an agency. 209 Third, when properly
205 Concrete Works of Colorado, Inc. v. City and County of Denver, 321 F.3d 950, 966 (10 th Cir. 2003) (“Concrete
Works IV”), cert. denied, 540 U.S. 1027 (2003).
206 Sherbrooke Turf, Inc. v. Minnesota Department of Transportation, 345 F.3d 964 (8 th Cir. 2003), cert. denied,
541 U.S. 1041 (2004).
207 Northern Contracting, Inc. v. Illinois Department of Transportation, 473 F.3d 715 (7 th Cir. 2007).
208 Builders Association of Greater Chicago v. City of Chicago, 298 F. Supp.2d 725 (N.D. Ill. 2003).
209 See Northern Contracting, Inc. v. Illinois Department of Transportation, 473 F.3d 715 at 723 (7 th Cir. 2007)
(“We agree with the district court that the remedial nature of the federal scheme militates in favor of a method of
DBE availability calculation that casts a broader net”).
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