The State of Minority- and Women- Owned ... - Cleveland.com

Legal Standards for Government Affirmative Action Contracting Programs
percentage of minority persons in the population as a whole. This aspirational goal is
reasonably construed as narrowly tailored to remedy past discrimination that has resulted
in homogenous ownership within the industry. It is reasonable to conclude that allocating
more than 95% of all federal contracts to enterprises owned by non-minority persons, or
more than 90% of federal transportation contracts to enterprises owned by non-minority
males, is in and of itself a form of passive participation in discrimination that Congress is
entitled to seek to avoid. See Croson, 488 U.S. at 492 (Op. of O’Connor, J.). 165
At least one court has recognized that goal setting is not an absolute science. In holding the DBE
regulations to be narrowly tailored, the Eighth Circuit noted that “[t]hough the underlying
estimates may be inexact, the exercise requires the States to focus on establishing realistic goals
for DBE participation in the relevant contracting markets. This stands in stark contrast to the
program struck down in Croson.” 166 “On the other hand, sheer speculation cannot form the basis
for an enforceable measure.” 167
It is settled case law that goals for a particular solicitation should reflect the particulars of the
contract, not reiterate annual aggregate targets; goals must be contract specific. Contract goals
must be based upon availability of M/W/DBEs to perform the anticipated scopes of
subcontracting. Not only is this legally mandated, 168 but this approach also reduces the need to
conduct good faith efforts reviews as well as the temptation to create “front” companies and
sham participation to appear to meet unreasonable contract goals. While this is more labor
intensive than defaulting to the annual, overall goals, there is no option to avoid meeting the test
of narrow tailoring because to do so would be more burdensome. The detailed availability
estimates in Chapter IV can form the starting point for Cleveland’s development of contract
goals.
3. Flexibility of Goals and Requirements
It is imperative that remedies not operate as fixed quotas. A M/WBE program must provide for
contract awards to firms who fail to meet the subcontracting goals but make good faith efforts to
do so. Further, firms who meet the goals cannot be favored over those who made good faith
efforts. In Croson, the Court refers approvingly to the contract-by-contract waivers used in the
USDOT’s DBE program. 169 This feature has been central to the holding that the DBE program is
narrowly tailored. 170
165 Adarand VII, 228 F.3d at 1181 (emphasis in the original).
166 Sherbrooke, 345 F.3d at 972.
167 Id. (complete absence of evidence for 12-15 percent DBE goal); see also BAGC v. Chicago, 298 F.Supp.2d at
740 (City’s MBE and WBE goals were “formulistic” percentages not related to the availability of firms).
168 See Sherbrooke, 345 F.3d at 972; Coral Construction, 941 F.2d at 924.
169 Croson, 488 U.S. at 508; see also Adarand VII, 228 F.3d at 1181.
170 See, e.g., Sherbrooke, 345 F.3d at 972.
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