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

Legal Standards for Government Affirmative Action Contracting Programs
women, 180 to separate goals for each minority group and women. 181 We note, however, that
Ohio’s Program was specifically faulted for lumping together all “minorities,” with the court
questioning the legitimacy of forcing African American contractors to share relief with recent
Asian immigrants. 182
5. Sharing of the Burden by Third Parties
Failure to make “neutral” changes to contracting and procurement policies and procedures that
disadvantage M/WBEs and other small businesses may result in a finding that the program
unduly burdens non-M/WBEs. 183 However, “innocent” parties can be made to share some of the
burden of the remedy for eradicating racial discrimination. 184 Burdens must be proven, and
cannot constitute mere speculation by a plaintiff. 185 “Implementation of the race-conscious
contracting goals for which TEA-21 provides will inevitably result in bids submitted by non-
DBE firms being rejected in favor of higher bids from DBEs. Although this places a very real
burden on non-DBE firms, this fact alone does not invalidate TEA-21. If it did, all affirmative
action programs would be unconstitutional because of the burden upon non-minorities.” 186
Narrow tailoring does permit certified firms acting as prime contractors to count their selfperformance
towards meeting contract goals. The program is not limited to just the
subcontracting markets. The DBE program regulations provide this remedy for discrimination
against DBEs seeking prime work, 187 and the regulations do not limit the application of the
program to only subcontracts. 188 The trial court explicitly recognized that barriers to
subcontracting opportunities affect the ability of DBEs to compete for prime work on a fair basis
in finding that Illinois’ DBE program was narrowly tailored.
180 See 49 C.F.R. §26.45(h) (overall goal must not be subdivided into group-specific goals).
181 See Engineering Contractors II, 122 F.3d at 900 (separate goals for Blacks, Hispanics and women).
182 Drabik, 214 F.3d at 737; see also Western States, 407 F.3d at 998 (“We have previously expressed similar
concerns about the haphazard inclusion of minority groups in affirmative action programs ostensibly designed to
remedy the effects of discrimination.”).
183 See Engineering Contractors Assoc. of South Florida, Inc. v. Metropolitan Dade County (“Engineering
Contractors I”), 943 F.Supp. 1546, 1581-1582 (S.D. Fla. 1996) (County chose not to change its procurement
system).
184 Concrete Works IV, 321 F.3d at 973; Wygant, 476 U.S. at 280-281; Adarand VII, 228 F.3 at 1183 (“While there
appears to be no serious burden on prime contractors, who are obviously compensated for any additional burden
occasioned by the employment of DBE subcontractors, at the margin, some non-DBE subcontractors such as
Adarand will be deprived of business opportunities”); cf. Northern Contracting II, at *5 (“Plaintiff has presented
little evidence that is [sic] has suffered anything more than minimal revenue losses due to the program.”).
185 Rowe, 615 F.3d at 254 (prime bidder had no need for additional employees to perform program compliance and
need not subcontract work it can self-perform).
186 Western States, 407 F.3d at 995.
187 49 C.F.R. § 26.53(g) (“In determining whether a DBE bidder/offeror for a prime contract has met the contractog
goal, count the work the DBE has committed to perform with its own forces as well as the work that it has
committed to be performed by DBE subcontractors and suppliers.”).
188 49 C.F.R. § 26.45(a)(1).
NERA Economic Consulting 52