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Rebuilding the Structure of MBE Programs

Rebuilding the Structure of MBE Programs . Michael E. Kennedy General Counsel Associated General Contractors of America. Roadmap. What is the problem?. What is the history?. Which are the seminal cases?. Going forward, what are the risks?. What is the problem?.

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Rebuilding the Structure of MBE Programs

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  1. Rebuilding the Structure of MBE Programs Michael E. Kennedy General Counsel Associated General Contractors of America

  2. Roadmap What is the problem? What is the history? Which are the seminal cases? Going forward, what are the risks?

  3. What is the problem? • Contractors caught in a double-bind • If you don’t push the envelop, you don’t get the job • If you do push the envelop, you may be liable for overstating your participation • Liquidated Damages • False Claims • Fraud

  4. What is the problem? • Goals too high • Badly flawed methodology • Enforcement too rigid • Standards too vague • No Single Source of Authority • Consequences too severe

  5. What is the history? • Intense and divisive litigation beginning in 1986 and running into 2008 • Several trips to the Supreme Court • Multitude of state and local programs struck down • Ended with industry exploring standards for imposing personal liability

  6. What is the history? • Wins for the Industry • San Francisco, CA 1987 • Richmond, VA 1989 • District of Columbia 1992 • Philadelphia, PA 1996 • Columbus, OH 1996 • Atlanta Public Schools 1997 • Dade County, FL 1997 • Fulton Country, GA 1999 • Baltimore, MD 2000 • Cook County, IL 2001 • Chicago, IL 2004 • Dade County, FL 2004 • State of Michigan 1987 • State of New Jersey 2000 • State of Ohio 2000 • State of Florida (DOT) 1998 • State of Washington (DOT) 2005 • U.S. Dept. of Defense 2008

  7. What is the history? • Losses for the Industry • State of Wisconsin (DOT) 1991 • State of Tennessee (DOT) 1991 • U.S. Dept. of Transportation 2000 • State of Minnesota (DOT) 2003 • State of Nebraska (DOT) 2003 • Denver, CO 2003 • State of Illinois 2007

  8. Which are the seminal cases? City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

  9. Which are the seminal cases? City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

  10. Which are the seminal cases? Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

  11. Which are the seminal cases? Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

  12. Which are the seminal cases? Rothe Development Corporation v. U.S. Department of Defense and U.S. Department of the Air Force, 545 F.3d 1023 (Fed. Cir. 2008).

  13. Which are the seminal cases? Rothe Development Corporation v. U.S. Department of Defense and U.S. Department of the Air Force, 545 F.3d 1023 (Fed. Cir. 2008).

  14. Going forward, what are the risks? • To the industry? • To the government?

  15. Roadmap What is the problem? What is the history? Which are the seminal cases? Going forward, what are the risks?

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