Barriers Facing Minority- and Women-Owned Businesses in Pennsylvania
Appendix 1: List of Presenters at the January 1999 Forum
Minority- and Women-Owned
Business Enterprise (M/WBE) Owners
Floyd Alston, president, Beech Interplex Inc.
Cornelius O. Baker, president, Progressive Plastics Products Co. Inc.
Marcellus Blair, president, MBA Enterprises Inc.
Ambrose O. Chukwunenye, P.E., president, Conquest Construction Services
Earl F. Callaway, owner, C.E. Franklin Inc.
Anthony Fullard, project manager, KKAJ Inc.
Grace Gibson, president, Quality Heating & Sheet Metal Co. Inc.
Darcel McGee, president, Quality Mobile Hearing
Derrick Townes, president, Townes Mechanical Contractors Inc.
State and City of Philadelphia
Michael E. Bell, director of minority and women business development, Redevelopment Authority
Andrew J. Carn, representative, Pennsylvania House of Representatives
Charles Gillean, disadvantaged business enterprise specialist, SEPTA
Paula J. McKinney, minority business coordinator, Governor’s Action Team
Hanford Jones, economic and opportunity coordinator, Office of Housing and Community Development
Edward G. Rendell, mayor of Philadelphia
Jim Roundtree, director, Philadelphia Minority Business Enterprise Council
Mary Jo Shawb, women’s business advocate, Department of Community and Economic Development
Jihad Ali, representative, United Minority Enterprise Association Inc.
Clinton Connor, chairman, NAACP (Economic Development Committee)
Jasper Jones, representative, Crop Action Team and Center for Economic and Social Justice
Charles Soloman, director of economic development, Greater Philadelphia Urban Affairs Coalition
Horace Trent III, representative, Crop Action Team and Center for Economic and Social Justice
Jesse W. Woods III, vice president, Center for Economic and Social Justice
Lynn L. Claytor, president, Contract Compliance Inc.
Nancy Myers, president, Qualified Women/Minorities in Construction
Large Prime Contractor
Ben Kaplan, purchasing manager, Turner Construction
Jack Shannon, director of economic development, University of Pennsylvania
Herb Young, director of community affairs, Turner Construction
Leon Alexander, student
Theodore Brimat, P.E., laboratory director, Ava Shypula Consulting Inc.
Percival T. Fields, PTA /Crop Economic Development Co.
David Leary, student
Roxane Mandel, president, ADR Services
Carole E. Robinson, president, Robins Industrial & Building Supplies Inc.
John Thomas, MeaJencoe Construction & Services Inc.
Appendix 2: Pennsylvania State Agency Contracts and Payments to MBEs and WBEs, 1995–97 (PDF)
Appendix 3: Timeline and Citations Relating to Chapter 17-500 of the Philadelphia Code, Mayoral Executive Orders 6-90 and 1-93, and Contractors Association of Eastern Pennsylvania v. Philadelphia Litigation1
April 5, 1990. Judge Louis T. Bechtle rules in favor of the Contractors Association and permanently enjoins the City from implementing Chapter 17-500. City appeals this decision along with defendant intervenor, “United Minority Enterprise Associates (UMEA).” Contractors Association of Eastern Pennsylvania, Inc. v. City of Philadelphia, 735 F. Supp. 1274 (E.D. Pa. 1990).
June 1990. Mayor W. Wilson Goode issues Executive Order 6-90, relating to the nondiscriminatory solicitation and use of businesses owned by minorities, women, and disabled persons on City contracts.
September 30, 1991. Court of Appeals vacates Judge Bechtle’s 4/5/90 Order and allows City and UMEA a period of time to discover information relating to instances or a pattern of discrimination in the Philadelphia construction industry prior to the passage of Chapter 17-500, Contractors Association of Eastern Pennsylvania, Inc. v. Philadelphia, 945 F.2d 1260 (3d Cir. 1991) (“Contractors I”).
September 22, 1992. Judge Bechtle is unpersuaded by the City and UMEA’s submission of additional evidence and rules, for the second time, that Chapter 17-500 is unconstitutional, Contractors Association of Eastern Pennsylvania, Inc. v. Philadelphia, 1992 U.S. Dist. LEXIS 14416 (E.D. Pa. Sept. 22,1992).
January 1993. Mayor Edward G. Rendell issues Executive Order 1-93, relating to the nondiscriminatory solicitation and use of businesses owned by minorities, women, and disabled persons on City contracts.
October 7, 1993. Court of Appeals partially vacates Judge Bechtle’s ruling by limiting the Contractors’ standing to challenge only those sections of Chapter 17-500 pertaining to construction contracts (standing limited since this was the only area in which Contractors had a personal stake) and orders a trial on the issue of whether there was evidence of discrimination sufficient to support the City’s use of goals for the participation of businesses owned by blacks in City construction contracts (the Court of Appeals concluded that the City had not presented, at the summary judgment level, adequate evidence of discrimination against businesses owned by Hispanic, Native, Asian American, and female persons in the Philadelphia construction industry, so the City remained enjoined from applying the goals program for these businesses on City construction contracts). Contractors Association of Eastern Pennsylvania, Inc. v. Philadelphia, 6 F.3d.990 (3d Cir. 1993) (“Contractors III”).
January 11, 1995. Following a nine-day non-jury trial held in the summer of 1994, Judge Bechtle rules that the City failed to identify racial discrimination in the Philadelphia construction industry sufficient to warrant the use of a race-based remedy for black construction firms, the City takes another appeal. Contractors Association of Eastern Pennsylvania, Inc. v. Philadelphia, 893 F. Supp. 419 (E.D. Pa. 1995).
September 29, 1995. Philadelphia Recycling Company, a disappointed bidder to a City service/supply/equipment contract, challenges Chapter 17-500. After a two-day hearing, Judge Harvey Bartle, United States District Court for the Eastern District of Pennsylvania, issues a preliminary injunction, enjoining the City from applying Chapter 17-500 to service/supply/equipment contracts. (Case not reported.)
July 31, 1996. The Court of Appeals affirms Judge Bechtle’s January 1995 judgment. The Court of Appeals ruled that although it is a “close call” whether the City had presented evidence of discrimination in the prime contracting market sufficient to support a race-based remedy, since Chapter 17-500 focused primarily on subcontracting and the City had been unable to produce adequate evidence of discrimination in construction industry subcontracting, Chapter 17-500 failed. Contractors Association of Eastern Pennsylvania, Inc. v. Philadelphia, No. 95-1095 (3d Cir. July 31, 1996) (“Contractors III”).
December 4, 1996. City files petition with the United States Supreme Court for a writ of certiorari to review the judgment of the Court of Appeals.
February 18, 1997. U.S. Supreme Court denies City’s petition for certiorari.
January 1, 1998. Chapter 17-500 of the Philadelphia Code expired pursuant to Section 17-502(2) of that Chapter.
1 Timeline provided by Michelle D. Flamer, senior attorney, City of Philadelphia Law Department, Aug. 17, 2000.
Appendix 4: Executive Order 5-95 (Public Works Project Labor Agreements)
WHEREAS, the City of Philadelphia has a compelling interest in awarding public works contracts so as to yield the lowest reasonable costs and the highest standard of quality and efficiency; and
WHEREAS, Project Labor Agreements, when appropriate and feasible, can ensure that a public works project is completed at the lowest reasonable cost; by the highest quality and most professional work force; and in a timely manner without labor disruptions such as strikes, lockouts or slowdowns; and
WHEREAS, The benefits of any proposed Project Labor Agreement must be carefully weighed with the effect the Project Labor Agreement would have on competitive bidding, project costs and the City’s policy to advance women- and minority-owned businesses; and
WHEREAS, a Project Labor Agreement may be used on a particular project if such Agreement clearly benefits the interests of the City on the basis of cost, efficiency, quality, safety and/or timeliness;
NOW, THEREFORE, by the powers vested in me by the Philadelphia Home Rule Charter, it is hereby ORDERED:
(a) Appropriate Labor Organization. An organization representing, for purposes of collective bargaining, journeymen in one or more crafts or trades with a Federal or state certified approved apprenticeship training program and which:
(i) has entered into a labor agreement with an employer in the building and construction industry;
(ii) has represented journeymen, mechanics and apprentices employed on projects similar to the project for which a Project Labor Agreement is being considered; and
(iii) possesses the present ability to refer, provide or represent qualified journeymen in the crafts or trades required by the project, in sufficient numbers to perform the contracted work involved in the project.
(b) City Agency. A City office, department, board, commission or other entity which procures goods and services through the City Procurement Department.
(c) Project Labor Agreement. A collective bargaining agreement between an employer and an Appropriate Labor Organization relating to work performed at the site of a particular construction project. Such an agreement sets forth the terms and conditions of employment for workers hired by the employer and sets forth certain work rules, nostrike clauses, jurisdictional determinations and other provisions that the employer deems important for the completion of the project. For purposes of this Executive Order, the form and manner of the Project Labor Agreement shall be substantially in the form attached hereto as the “Uniform City of Philadelphia Public Projects Labor Agreement,” subject to the review and approval of the City Solicitor.
2. Project Labor Agreement Pilot Program.
There is hereby created a pilot program to test the appropriateness and feasibility of the use of Project Labor Agreements in major City public works projects. Such Project Labor Agreements may be used only in accordance with the terms of this Executive Order. Every Project Labor Agreement entered into pursuant to this Executive Order will be monitored and evaluated by the Advisory Committee established pursuant to paragraph 3 hereof. The duration of this pilot program will depend upon the findings and recommendations of the Advisory Committee as it monitors and evaluates each Project Labor Agreement.
3. Project Labor Agreement Advisory Committee.
(a) Composition. There is hereby created a Project Labor Agreement Advisory Committee consisting of the following persons:
(i) Procurement Commissioner or his/her designee;
(ii) Commissioner of Public Property or his/her designee;
(iii) Director, Minority Business Enterprise Council;
(iv) Director of Aviation or his/her designee;
(v) Deputy Mayor for Labor;
(vi) Chair, Law Department’s Corporate Group;
(vii) Managing Director or his/her designee; and
(viii) such other person or persons designated from time to time by the Mayor.
(b) Duties. The Advisory Committee shall:
(i) Make recommendations to the Mayor as to whether a City agency’s request to use a Project Labor Agreement on a particular public works project should be approved as part of the Project Labor Agreement Pilot Program;
(ii) Monitor and evaluate every Project Labor Agreement entered into pursuant to this Executive Order;
(iii) Make periodic reports to the Mayor as to the status of the Project Labor Agreement Pilot Program;
(iv) Ensure compliance with the terms of this Executive Order;
(v) Make recommendations to the Mayor as to the continued feasibility of Project Labor Agreements in City public works contracts, including recommendations as to whether the Project Labor Agreement Pilot Program established under this Executive Order should be modified, ended, continued or made permanent; and
(vi) Perform such other duties as the Mayor may from time to time assign.
This Executive Order shall apply to major public works projects governed by Section 17-107 of the Philadelphia Code (relating to prevailing wages) and which are for an amount in excess of $250,000 or such greater or lesser amount as may from time to time be recommended by the Advisory Committee and approved by the Mayor.
5. When City Agencies May Use Project Labor Agreements.
(a) A City agency may use a Project Labor Agreement in a particular public works project if and only if the City agency makes a prior written determination that such an Agreement is appropriate and feasible with respect to the particular project, under the standards set forth in paragraph 5(b) hereof. The written determination must be sent to the Advisory Committee which shall review it and make a recommendation to the Mayor as to whether a Project Labor Agreement should be used for the specified public works project.
(b) A City agency’s determination of the appropriateness and feasibility of using a Project Labor Agreement for a particular project shall set forth in detail the investigation, analysis and justification supporting the determination that the agreement will benefit and enhance the interests of the City on the basis of cost, efficiency, quality, safety and/or timeliness, and shall specifically address the following factors:
(i) The need for safe, timely and efficient completion of the project;
(ii) The need for predictable costs and enforcement of prevailing wage requirements;
(iii) The need for effective mechanisms for resolution of disputes;
(iv) The need for a ready and adequate supply of highly skilled and highly trained craft workers and the need to guarantee performance of the project in a workmanlike arid professional manner; and
(v) The opportunity to provide significant employment opportunities for qualified City residents and for small, women and minority-owned businesses, taking into consideration the market or pool of available women- and minority-owned businesses, and the effect a Project Labor Agreement would have on the City’s policy to advance moment and minority-owned businesses.
(c) The written determination shall also make a finding as to the Appropriate Labor Organization, and shall specifically address whether there are labor organizations other than the Philadelphia, Pennsylvania Building and Trades Council that have the capacity to enter into a Project Labor Agreement within the project area.
(d) This Executive Order does not require the use of a Project Labor Agreement with respect to any particular project, nor does this Executive Order require the selection of any particular union, trade council or labor organization.
6. Required Provisions In Project Labor Agreements.
Any Project Labor Agreement entered into pursuant to this Executive Order shall:
(a) Contain guarantees against strikes, lockouts, slowdowns and similar actions; and
(b) Set forth effective, immediate and mutually binding procedures for resolving jurisdictional disputes arising before the completion of the work.
7. Bid Specifications and Procedures When Project Labor Agreements Are Used.
If a Project Labor Agreement is used pursuant to this Executive Order in any public works contracts, the following procedures shall be followed:
(a) The form and manner of the Project Labor Agreement shall be substantially in the form attached hereto as the “Uniform City of Philadelphia Public Projects Labor Agreement,” subject to the review and approval of the City Solicitor. Such form and manner of Uniform City of Philadelphia Public Projects Labor Agreement shall be subject to modification or revision from time to time on the recommendation of the City Solicitor or the Advisory Committee.
(b) The Project Labor Agreement shall be negotiated and executed by the general contractor or project manager, subject to the review and approval of the City;
(c) The Instructions to Bidders shall provide that the City, the project manager and any contractor shall have the absolute right to select any qualified bidder for the award of project contracts without reference to whether the bidder was unionized, provided, however, that only a bidder willing to execute and comply win the Project Labor Agreement would be designated the successful bidder;
(d) The Instructions to Bidders shall provide that the Project labor Agreement shall be made binding on all contractors and subcontractors on the project through inclusion of appropriate bid specifications in all relevant bid documents; and
(e) The public works project shall comply with all other provisions of law, including, but not limited to, the provisions of Executive Order 1-93 (“Antidiscrimination Policy”).
8. Effective Date.
This Executive Order shall take effect immediately and shall apply only to public works project contracts executed after that date.
Appendix 5: Marc Pentino, Eastern Regional Office, USCCR, Letters to Gary N. Lee, Director, BCABD, June 27, 2000, and Sept. 21, 2001 (PDF)
Appendix 6: Gary N. Lee, Director, BCABD, Letter to Marc Pentino, Eastern Regional Office, USCCR, Oct. 11, 2001 (PDF)
Appendix 7: Marc Pentino, Eastern Regional Office, USCCR, Response to Oct. 11, 2001, Letter from Gary N. Lee, Director, BCABD, Oct. 30, 2001 (PDF)
Appendix 8: Marc Pentino, Eastern Regional Office, USCCR, Letter to Gary N. Lee, Director, BCABD, Mar. 22, 2002 (PDF)