Center for Equal Opportunity - Preferences Based on Race, Ethnicity, and Sex in Government Contracting

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Preferences Based on Race, Ethnicity, and Sex in Government Contracting

One of the principal ways in which federal, state, county, and municipal governments discriminate is by awarding preferences based on race, ethnicity, and sex in their contracting. Sometimes companies owned by members of certain racial or ethnic groups—or by women—are awarded contracts even though they may not have submitted the lowest bid; on other occasions, prime contractors are required to set aside subcontracts for such companies or to treat their subcontracting bids more favorably. But anytime this sort of preferential treatment occurs, it is discrimination, and is a likely violation of the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment, as well as other federal and state laws.

The case law in this area has been very favorable for those challenging such discrimination. So if you think you have been treated unfairly, it makes sense to consider challenging the government that is using preferences based on race, ethnicity, or sex. The purpose of this part of the CEO website is to provide resources to those who are interested in bringing such challenges—either in court, or in public debate.

The best collection of information about contracting discrimination is at the Project on Civil Rights and Public Contracting, run by George La Noue and John Sullivan out of the University of Maryland/Baltimore County. La Noue and Sullivan are the nation’s leading experts in this area, and have frequently appeared as expert witnesses in cases challenges illegal contracting preferences. Their website is: www.research.umbc.edu/~glanoue/index.html.

As mentioned earlier, the decisions handed down in this area by the courts—including the Supreme Court—have been overwhelmingly in favor of those challenging contract preferences. Links to some of the key cases are set out.

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Links to Contracting Cases

Adarand v. Pena (1995)

Adarand v. Slater (10th Cir. 2000)

Adarand v. Mineta (Dismissal of case) (2001) (PDF)

Rothe Development Corp. v. United States Department of Defense, No. 00-1171, Fed. Cir., August 20, 2001
From the opinion: This federal contract case concerns the constitutionality of § 1207 of the National Defense Authorization Act of 1987 ("the 1207 program"), Pub. L. No. 99-661, 100 Stat. 3859, 3973 (1986) (as amended), codified at 10 U.S.C. § 2323 (1994), which permits the United States Department of Defense ("DOD") to preferentially select bids submitted by small businesses owned by socially and economically disadvantaged individuals ("SDBs").

McGarry v. Pitkin County, No. 97-1239, 10th Cir.

Associated General Contractors of Ohio v. Drabik, No. 98-4393, 6th Cir. June 1, 2000
From the opinion: Associated General Contractors of Ohio, and Associated General Contractors of Northwest Ohio ("Plaintiffs-Appellees"), representing Ohio building contractors, sued to stop the award of a construction contract for the Toledo Correctional Facility to a minority-owned business ("MBE"), in a bidding process from which non-minority-owned firms were statutorily excluded under Ohio's Minority Business Enterprise Act ("MBEA"). Plaintiffs-Appellees claimed the MBEA is unconstitutional, in that it violates the Fourteenth Amendment's Equal Protection Clause.

S.J. Groves & Sons Inc. v. Fulton County, 920 F.2d 752 (11th Cir.)

H.K. Porter Co. v. Metropolitan Dade County, 975 F.2d 762 (11th Cir. 1992)

Groves v. Fulton County, Dist. Ct. N.D. of Georgia Atlanta Division 1:82-CV-1895-JOF

Sherbrooke Turf v. Minn Department of Transportation Dist. Ct. Dist of Minnesota 00-CV-1026 (JMR.RLE)

Associated General Contractors of Ohio v. Drabik
Dist Ct. S.D. Ohio Eastern Div. No. C2-98-943, May 20, 1999

Contractors Association of Eastern Penn v. Philadelphia
Nos. 92-1880 and 92-1887, (3rd Cir) Oct. 7, 1993

Associated General Contractors, San Diego Chapter v. San Diego
Case No. 93-1152 K
Sept. 30, 1993
U.S. Dist Ct. S.D. of California

Associated General Contractors of California v. San Francisco
619 F. Supp. 334
United States Dist. Ct. N.D. Cal.
Aug. 7, 1985

Lamprecht v. FCC
D.C. Cir.
Feb. 19, 1992

Bilbo Freight Lines v. Dan Morales C.A. No. H-93-3808
Dist Ct. S. Dist of Texas Houston District
Feb 3, 1994

Arrow Office Supply V. Detroit
826 F. Supp. 1072
Dist Ct. E.D. Mich
July 7, 1993

Kline v. Parris Glendening
Civil Action No. MJG-95-3375
Dist Ct. for Dist. Of Md.
June 14, 1996

Associated General Contractors v. Columbus
Case No. C2-89-75

Dist. Ct. S.D. of Ohio Eastern Division
Aug. 26, 1996

Hershell Gill Consulting Engineers v. Metro Dade County
Case No. 98-2300
U.S. Dist Ct. S.D. of Florida, Miami Division
Oct. 2, 2000

Those who are thinking of challenging contracting preferences as illegal may want to look at some of the briefs that others have filed in these cases. Links to some of these briefs follow.

Contracting Briefs

Adarand v. Mineta, Brief of Federal Government, Respondent

Adarand v. Mineta (Amicus Brief of Atlantic Legal Foundation in support of Petitioner, Adarand)

Amicus Brief of Pacific Legal Foundation in support of Petitioner, Adarand

Amicus Brief of Claremont Institute in support of Petitioner, Adarand (PDF)

Related Contracting Items

Links to Executive Branch

Small Business Administration (SBA)

Department of Labor

Department of Defense

Department of Transportation

DOT’s Office of Small and Disadvantaged Business Utilization (OSDBU)

DOT’s Disadvantaged Business Enterprise Program (DBE)

Challenges to illegal contracting preferences have been handled by a variety of lawyers, including lawyers with public-interest organizations that often agree to bring these cases on a pro bono basis. Links to some of the lawyers and law firms handling these cases are set out below.

Links to articles by Clegg, LaNoue, Sullivan, etc.

General Accounting Office Reports:

GAO Report: Problems Continue with SBA’s Minority Business development Program
GAO/RCED 93-145, Nov. 1993

GAO Report: Disadvantaged Business Enterprises: Critical Information Is Needed to Understand Program Impact, GAO-01-586), June 2001
(Link coming)

LaNoue Testimony before House Judiciary Committee, Subcommittees on the Constitution with Senate Judiciary Committee, Subcommittee on Constitution, Federalism, and Property Rights: Evidentiary Basis for the Use of Racial Preferences in Public Contracting After Croson and Adarand
October 19, 1995

Roger Clegg, Racial Spoils in Fed Contracting, National Review Online, October 20, 2000

The Demographic Premises of Affirmative Action
George LaNoue
Population and Environment: A Journal of Interdisciplinary Studies
Vol. 14 No. 5 May 1993
Human Science Press

Gross Presumptions: Determining Group Eligibility for Federal Procurement Preferences
LeNoue & Sullivan
Santa Clara Law Review
Vol. 41 No. 1 2000

Presumptions for Preferences: The SBA’s Decisions on Groups Entitled to Affirmative Action
LaNoue & Sullivan
Journal of Policy History
Vol. 6 No. 4 1994
Penn State Univ Press

To the “Disadvantaged” go the Spoils
LaNoue
The Public Interest
Winter 2000

Race-Neutral Programs in Public Contracting
LaNoue & Sullivan
Public Administration Review July/August 1995
Vol. 55 No. 4

Standards for the Second Generation of Croson-Inspired Disparity Studies
LaNoue
The Urban Lawyer

Vol. 26 No. 3 Summer 1994

The Impact of Croson on Equal Protection Law and Policy
LaNoue
Albany Law Review
Vol. 61 No. 1 1997

The Economics of Discrimination: The Three Fallacies of Croson
Martin J. Katz

Yale Law Journal 100(6) Jan. 91 Pg. 1033

Links to Regulations

Department of Justice Proposed Reforms to Affirmative Action in Federal Procurement 61 Fed. Reg. 101, 26,041-26,043 (May 23, 1996)
[DOCID:fr23my96-154]

Department of Transportation’s Proposed Revisions for its Disadvantaged Business Enterprise Program (DBE) 66 Fed. Reg. 89, 23208-23227 (May 8, 2001) [DOCID:fr08my01-27]

Office of Management and Budget, Small Disadvantaged Business Procurement; Reform of Affirmative Action in Federal Procurement Notice of determination concerning price evaluation adjustments. 63 Fed. Reg. 125, 35,713-35,718 (June 30, 1998)
[DOCID:fr30jn98-132]

Department of Defense Interim Rule: Reform of Affirmative Action in Federal Procurement 63 Fed. Reg. 125, 35,719-35,726 (June 30, 1998)
[DOCID:fr30jn98-21]

Small Business Administration Final Rule, 8(a) Business Development/Small Disadvantaged Business Status Determinations, 63 Fed. Reg. 125, 35,767-35,780 (June 30, 1998) [DOCID:fr30jn98-24]

Small Business Administration
Small Business Size Regulations; 8(a) Business Development/Small Disadvantaged Business Status Determinations; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals 63 Fed. Reg. 125, 35,726-35,767 (June 30, 1998)
Final Rule
(Link coming)

Department of Defense
Federal Acquisition Regulation; Reform of Affirmative Action in Federal Procurement
62 Fed. Reg. 90 29,547-29,621 (May 9, 1997)
Proposed Rule
(Link coming)

Department of Transportation
This notice proposes revisions of the Department of Transportation's regulations for its disadvantaged business enterprise (DBE) program.
62 Fed. Reg. 104 (May 30, 1997)

Supplemental notice of proposed rulemaking
(Link coming)

*13 CFR 124
Subpart B--Eligibility, Certification, and Protests Relating to Federal Small Disadvantaged Business Programs

13 CFR 124-8(A)
BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS STATUS DETERMINATIONS

*49 CFR 26.67(a)
PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS:

What rules determine social and economic disadvantage?

Small Business Administration Final Rule, 63 Fed. Reg. 125, 35,767-35,780 (June 30, 1998)