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Inclusive Business Initiative: Establishing the Framework for M/WBE Procurement Policy

Gain insight into legal fundamentals, Croson & Adarand cases, strict scrutiny standards, and practical remedies for disparity in government procurement policies.

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Inclusive Business Initiative: Establishing the Framework for M/WBE Procurement Policy

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  1. Inclusive Business Initiative: Establishing the Framework for M/WBE Procurement Policy Insight Center for Community Economic Development Webinar March 4, 2008, 2:00 PM

  2. THE BASICS: LEGAL FUNDAMENTALS • CROSON • ADARAND I AND II • STRICT SCRUTINY STANDARD • COMPELLING INTEREST • NARROW TAILORING

  3. Lessons of Croson & Adarand • Strict Scrutiny • When is it required? • To examine government use of a racial preference • To examine government use of a racial classification

  4. Two Prongs of Strict Scrutiny 1st Prong: Compelling Interest • Disparity studies & factual predicates provide a ‘strong basis in evidence’ • The “factual predicate” provides a roadmap to remedies • Identification of where disparities exist • Identification of the nature & form of barriers, and root causes of disparities.

  5. Two Prongs of Strict Scrutiny 2nd Prong: Narrow Tailoring of Remedies • Consideration of “race-neutral” remedies • Consideration of appropriate “race-conscious” remedies only when it appears that neutral remedies, in and of themselves, are inadequate • Limited duration; periodic review; limited by ethnicity/gender, industry, & form of discrimination • Forms of remedies: Follow the Road Map of the Factual Predicate

  6. Centralized Bidder Registration • Provides statistical foundation for accurately measuring availability and utilization. • Enhances ability to conduct targeted e-mail outreach to vendors. • Enhances ability to set realistic subcontracting goals.

  7. Elements of a Disparity Study • Quantitative Analysis • Availability of M/WBEs • Utilization of M/WBEs • Disparity Analysis • Causation / Regression Analysis of Disparities

  8. Elements of a Disparity Study • Qualitative Evidence • Anecdotal Evidence (Interviews, surveys, public hearings, etc.) • Case studies • Analysis of procurement policies and practices

  9. Elements of a Disparity Study • Identification of prior race- and gender-neutral remedies • Evaluation of effectiveness of prior neutral remedies in addressing disparities

  10. Elements of a Disparity Study • Findings & Recommended Remedies • Identification of barriers to availability and utilization of ready, willing, and able M/WBEs • Active discrimination by government? • Passive discrimination by government in rewarding or perpetuating the effects of private sector discrimination?

  11. Elements of a Disparity Study • Findings and Recommendations • Consideration of efficacy of race- and gender-neutral remedies (de-bundling, bonding waivers, outreach, small business programs) • Consideration of appropriately narrowly tailored race- and gender-conscious remedies to address disparities

  12. A SUMMARY OF RACE- AND GENDER-CONSCIOUS M/WBE PROGRAM ELEMENTS • Mandatory M/WBE Subcontracting Goals Program • Voluntary M/WBE Subcontracting Goals Program (Good Faith Efforts). • M/WBE Set Asides. • Joint Venture Incentives. • Price Preferences.

  13. A SUMMARY OF RACE- AND GENDER-CONSCIOUS M/WBE PROGRAM ELEMENTS • Linked Deposit Programs • Evaluation Preferences (Professional Services). • Targeted Solicitation or Bidding Rotation Preference. • Disadvantaged Business Enterprise Programs (presumptions of social disadvantage based on race / gender)

  14. QUESTIONS??? Contact: Franklin M. Lee, Esq. Partner Tydings & Rosenberg LLP 100 E. Pratt Street, 26th Floor Baltimore, MD 21202 (410) 752-9734 E-mail: flee@tydingslaw.com

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