Sample Template - Insight Center for Community Economic Development

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

        Insight Center for Community
           Economic Development
                Webinar
         March 4, 2008, 2:00 PM
     THE BASICS: LEGAL FUNDAMENTALS

   CROSON
   ADARAND I AND II

   STRICT SCRUTINY STANDARD
       COMPELLING INTEREST
       NARROW TAILORING




                                      2
     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



                                           3
    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
      1. Identification of where disparities exist

      2. Identification of the nature & form of
         barriers, and root causes of disparities.


                                                  4
      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



                                                             5
Centralized Bidder Registration
1.   Provides statistical foundation for accurately
     measuring availability and utilization.
2.   Enhances ability to conduct targeted e-mail
     outreach to vendors.
3.   Enhances ability to set realistic
     subcontracting goals.




                                                      6
        Elements of a Disparity Study
   Quantitative Analysis
       Availability of M/WBEs
       Utilization of M/WBEs
       Disparity Analysis
       Causation / Regression Analysis of Disparities




                                                         7
        Elements of a Disparity Study
   Qualitative Evidence
       Anecdotal Evidence (Interviews, surveys,
        public hearings, etc.)
       Case studies
       Analysis of procurement policies and practices




                                                     8
      Elements of a Disparity Study
   Identification of prior race- and gender-
    neutral remedies
   Evaluation of effectiveness of prior neutral
    remedies in addressing disparities




                                                   9
        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?



                                                         10
        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


                                                     11
       A SUMMARY OF RACE- AND GENDER-
     CONSCIOUS M/WBE PROGRAM ELEMENTS

1.    Mandatory M/WBE Subcontracting Goals
      Program
2.    Voluntary M/WBE Subcontracting Goals
      Program (Good Faith Efforts).
3.    M/WBE Set Asides.
4.    Joint Venture Incentives.
5.    Price Preferences.


                                             12
       A SUMMARY OF RACE- AND GENDER-
     CONSCIOUS M/WBE PROGRAM ELEMENTS

6.    Linked Deposit Programs
7.    Evaluation Preferences (Professional Services).
8.    Targeted Solicitation or Bidding Rotation
      Preference.
9.    Disadvantaged Business Enterprise Programs
      (presumptions of social disadvantage based on
      race / gender)


                                                    13
              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

                                  14

				
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