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New affirmative action guidelines proposed – Justice Department Seeks Public Comment

The U.S. Justice Department has issued an unusual call for public comment on proposed new affirmative action guidelines.


Issuing the request through the Federal Register, the department lays out three new principles of affirmative action that would govern government contracting if adopted. “We will take all the comments very seriously,” said Bill Yeomans, acting deputy attorney general for civil rights.


The new principles do not change any existing affirmative action policies but, if adopted,will be the basis for new rules for federal contracting. Public colleges and universities could be affected by these new guidelines, if adopted, in the way they award contracts to outside vendors.


This is part of the process President Bill Clinton called for when he said that affirmative action should be “mended,” but not ended. It is also, Yeomans said, the federal government’s response to the Supreme Court ruling in the case Adarand vs. Pena, which held that race-based affirmative action programs are subject to the constitutional standard of “strict scrutiny.”


The first of the proposed new principles tightens the requirements for firms designated SDBs (socially and economically disadvantaged businesses). The second requires federal agencies to use as many outreach and technical support mechanisms as they can before resorting to affirmative action. The third principle establishes what are called “benchmarks” against which contracts will be judged.


For example, when a federal government agency requests bids for a product or service, it will determine — using complex statistical methods — what percentage of that product or service would have been provided by minority-owned firms if it had not been for historical discrimination. If the bids do not reflect that benchmark percentage, then a “credit” will be awarded those SDBs that bid. Once SDB participation exceeds the benchmark, the credit would be lowered or suspended.


A two-page summary of the proposed reform of affirmative action issued by the justice Department said: “…a proposal for reform of race-conscious affirmative action measures in federal procurement that target assistance to minority-owned businesses through programs that aid small firms that are owned by socially and economically disadvantaged individuals (SDBs).


“The proposal is designed to ensure that such programs comport with the Supreme Court’s ruling last June in Adarand Constructors, Inc. vs. Pena, which held that federal race-conscious based affirmative action programs are subject to the constitutional standard of strict scrutiny.


New Criteria


“I. Certification and Eligibility: “SDB programs assist small firms owned by individuals that are disadvantaged socially (subjected to racial or cultural bias), and economically (that bias has led to decreased economic opportunities compared to others). Applicants to these programs will be required to submit a form to the procuring agency verifying their eligibility.


“Members of designated racial and national origin groups presently are presumed by statute to be socially and economically disadvantaged. The proposal does not affect those presumptions. Under the proposal, non-minority applicants may establish by a preponderance of evidence — instead of the current clear and convincing standard — that they are socially and economically disadvantaged. This change will open SDB participation to more women and non-minorities.


“All applicants to SDB programs will be required to submit a certification from an SBA-approved organization verifying that the individuals claiming disadvantage own and control the company as defined by SBA regulations.


“II. Race-neutral Mechanism “Agencies will be required to maximize the use of technical assistance, outreach and other race-neutral means to increase minority opportunity and participation in federal procurement, thereby decreasing reliance on race-conscious mechanisms.


“III. Establishment of Benchmark Limitations: “In order to ensure that race-conscious procurement is not used unnecessarily, benchmarks will be developed for each industry in which the government contracts. Benchmarks will seek to measure the level of minority contracting that would exist absent the effects of discrimination. “Benchmarks will be calculated by combining the capacity of available minority firms in the industry with an adjustment, where applicable, for the amount that discrimination has suppressed that availability.


“IV. Application of Benchmark Limitations “Where minority participation falls below the benchmark, a price or evaluation credit — not set-asides — will be authorized for the evaluation of bids by SDBs and prime contractors who commit to subcontract with SDBs.


“When SDB participation exceeds the benchmark, the credit would be lowered or suspended. When that occurs, the SBA concurrently will limit the use of the 8(a) program in that industry by restricting entry, speeding graduation, or restricting the number of 8(a) awards in the industry. “After this system is in place for two years, a thorough review will be conducted, and changes to the amount and methods of assistance would be considered at that time.”


The full proposal can be found in the May 23 edition of the Federal Register (page 26042). To submit written comments on the new proposals, send them to Mark Gross, office of the Assistant Attorney General for Civil Rights, P.O. Box 65808, Washington, DC, 20035-5808 or fax to: (202) 307-2839. For more information, call Mark Gross at (202) 514-2172.


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