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Legal Standards for Government Affirmative Action Contracting Programs
This requirement that goals be applied to the value of the entire contract, not merely the
subcontracted portion(s), is not altered by the fact that prime contracts are, by law,
awarded to the lowest bidder. While it is true that prime contracts are awarded in a race-
and gender-neutral manner, the Regulations nevertheless mandate application of goals
based on the value of the entire contract. Strong policy reasons support this approach.
Although laws mandating award of prime contracts to the lowest bidder remove concerns
regarding direct discrimination at the level of prime contracts, [n30] the indirect effects of
discrimination may linger. The ability of DBEs to compete successfully for prime
contracts may be indirectly affected by discrimination in the subcontracting market, or in
the bonding and financing markets. Such discrimination is particularly burdensome in the
construction industry, a highly competitive industry with tight profit margins,
considerable hazards, and strict bonding and insurance requirements. 189
6. Duration and Review of Programs
As noted by the Sixth Circuit, “[n]arrow tailoring also implies some sensitivity to the possibility
that a program might someday have satisfied its purposes.” 190 The USDOT DBE Program’s
periodic review by Congress has been repeatedly held to provide adequate durational limits. 191
“[T]wo facts [were] particularly compelling in establishing that [North Carolina’s M/WBE
program] was narrowly tailored: the statute’s provisions (1) setting a specific expiration date and
(2) requiring a new disparity study every 5 years.” 192 In contrast, one of many factors in the
court’s holding that Cuyahoga Community College’s program was not narrowly tailored was the
lack of any durational limit. 193
Conversely, it was the unlimited duration and lack of review that led to the City of Augusta,
Georgia’s DBE program being enjoined, 194 as well as one factor in the court’s holding that the
City of Chicago’s M/WBE Program was no longer narrowly tailored. 195
189 Northern Contracting II, 2005 U.S. Dist. LEXIS 19868 at 74.
190 Drabik, 214 F.3d at 737.
191 See Western States, 407 F.3d at 995.
192 Rowe, 615 F.3d at 253.
193 F.Buddie, 31 F.Supp.2d 583.
194 Thompson Building Wrecking Co., Inc. v. City of Augusta, Georgia, 2007 U.S. Dist. Lexis 27127 (S.D. Ga.
2007) at *22-23.
195 BAGC v. Chicago, 298 F.Supp.2d at 739; see also Webster, 51 F. Supp. 2d at 1382 (one of Fulton County’s
telling disqualifiers was that it had been implementing a “quota” program since 1979 with no contemplation of
program expiration); see also Virdi, at *18 (“unlimited duration of the [District’s] racial goals also demonstrates
a lack of narrow tailoring.… While the District’s effort to avoid unintentional discrimination should certainly be
ongoing, its reliance on racial classifications should not.”).
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