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Federal Procurement After Adarand

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Federal Procurement After Adarand U.S. COMMISSION ON CIVIL RIGHTS The U.S. Commission on Civil Rights is an independent, bipartisan agency established by Congress in 1957. It is directed to: ■ Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices. ■ Study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. ■ Appraise federal laws and policies with respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice. ■ Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin. ■ Submit reports, fi ndings, and recommendations to the President and Congress. ■ Issue public service announcements to discourage discrimination or denial of equal protection of the laws. MEMBERS OF THE COMMISSION Gerald A. Reynolds, Chairman Abigail Thernstrom, Vice Chairman Jennifer C. Braceras Peter N. Kirsanow Ashley L. Taylor Michael Yaki Kenneth L. Marcus, Staff Director U.S. Commission on Civil Rights 624 Ninth Street, NW Washington, DC 20425 (202) 376-8128 voice (202) 376-8116 TTY www.usccr.gov This report is available on disk in ASCII and WordPerfect 5.1 for persons with visual impairments. Please call (202) 376-8110. Federal Procurement After Adarand iii Letter of Transmittal The President The President of the Senate The Speaker of the House Sirs: The United States Commission on Civil Rights transmits this report, Federal Procurement After Adarand, pursuant to Public Law 103-419. The Supreme Court’s 1995 decision in Adarand Contractor, Inc. v. Pena (Adarand), held that federal programs using racial and ethnic bases in decisionmaking must serve a compelling government interest and be narrowly tailored to meet that interest. Under this standard, federal agencies must seriously consider race-neutral alternatives to race-conscious procurement programs. This report considers federal agencies’ compliance with this constitutional requirement. The Commission reviewed relevant aspects of seven agencies’ procurement programs: the Departments of Defense, Transportation, Education, Energy, Housing and Urban Development, and State, and the Small Business Administration. Ten years after the Adarand decision, the Commission has found that federal agencies still largely fail to consider race-neutral alternatives as the Constitution requires. Although the Commission identified some race-neutral programming efforts, agencies do not engage in the activities that constitute serious consideration, such as program evaluation, outcomes measurement, empirical research and data collection, and periodic review. Significantly, the agencies under review neither provide clear recourse for contractors who are the victim of discrimination nor guidelines for enforcement. Among recommendations, the Commission urges the Department of Justice to offer clear and specific guidance on the governmentwide obligation to consider race-neutral alternatives. The Commission also asks the White House to assemble a task force to determine what data are required to measure the effectiveness of race-neutral alternatives. Finally, the Commission asks Congress to enact legislation expressly prohibiting race discrimination in federal contracting and establishing effective remedies and enforcement procedures. The report includes a dissenting statement from one commissioner. For the Commissioners, Gerald A. Reynolds Chairman v Contents EXECUTIVE SUMMARY.........................................................................................................................IX CHAPTER 1: FEDERAL CONTRACTING PRACTICES BEFORE AND AFTER ADARAND ..............1 Scope and Methodology.........................................................................................................................................2 Federal Contracting with Small and Disadvantaged Businesses: An Historical Perspective.................................5 The Adarand Decision: Establishing Strict Scrutiny..............................................................................................9 Applying Adarand to Federal Contracting Programs...........................................................................................13 Eligibility and Certification...........................................................................................................................15 Benchmark Limits.........................................................................................................................................16 Additional Mechanisms.................................................................................................................................17 Defining and Evaluating Race-Neutral Strategies................................................................................................18 CHAPTER 2: ELEMENTS AND EXAMPLES OF RACE-NEUTRAL CONTRACTING......................21 Elements of a Race-Neutral Contracting System .................................................................................................23 Element 1: Develop Standards and Policies Based on Sound Benchmark Data ...........................................24 Element 2: Identify and Develop a Wide Range of Race-Neutral Alternatives............................................27 Element 3: Routinely Evaluate the Impact of Race-Neutral and -Conscious Strategies ...............................27 Element 4: Communication and Coordination: Sharing Information and Best Practices .............................29 Race-Neutral Contracting Strategies ....................................................................................................................31 Strategy 1: Antidiscrimination Policy and Enforcement...............................................................................32 Enforcement of Nondiscrimination in Contracting................................................................................32 Subcontractor Compliance Enforcement ...............................................................................................36 Strategy 2: Outreach......................................................................................................................................38 Internet Postings and Searchable Databases ..........................................................................................39 Conferences, Meetings, Forums, Media, and Printed Materials ............................................................40 Ensuring the Inclusiveness of Outreach.................................................................................................42 Strategy 3: Capacity Building .......................................................................................................................43 Technical Assistance..............................................................................................................................43 Mentor-Protégé Programs ......................................................................................................................46 Teaming Efforts .....................................................................................................................................48 Certificates of Competency....................................................................................................................48 Strategy 4: Financial Assistance....................................................................................................................49 Advance Payments/Short-Term Lending Programs...............................................................................50 Bonding Guarantees...............................................................................................................................51 Strategy 5: Expanding Opportunities ............................................................................................................54 Contract Unbundling..............................................................................................................................54 The HUBZone Program.........................................................................................................................59 Conclusion............................................................................................................................................................66 CHAPTER 3: FINDINGS AND RECOMMENDATIONS........................................................................69 Serious Consideration...........................................................................................................................................71 Antidiscrimination Policy and Enforcement ........................................................................................................72 Ongoing Review...................................................................................................................................................73 Data and Measurement.........................................................................................................................................73
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