Federal Procurement Effort Lacks Nondiscrimination Protections and Enforcement

Washington DC– The United States Commission on Civil Rights, in an examination of federal agency procurement practices, found that the government fails to seriously consider race-neutral alternatives as the Constitution requires. Federal Procurement After Adarand describes the Supreme Court’s 1995 decision, which held that any federal procurement programs that base decisions on racial and ethnic factors must serve a compelling government interest and be narrowly tailored to serve that purpose. The Court also has said that agencies must consider race-neutral alternatives. In the report, the Commission examined relevant aspects of seven agencies’ procurement programs: the Departments of Defense, Transportation, Education, Energy, Housing and Urban Development, State, and the Small Business Administration.

“Federal agencies are disregarding their constitutional obligation to seriously consider race-neutral alternatives,” said Gerald A. Reynolds, Commission Chairman. “After ten years, they are still not complying with the Supreme Court’s mandate, and they are not even complying with the Clinton Administration’s guidance on race-neutral alternatives.” Chairman Reynolds explained, “Federal agencies do not independently evaluate, conduct research, collect data, or periodically review programs to determine whether race-neutral strategies will provide an adequate alternative to race-conscious programs. Instead, they continue to rely primarily on SBA-run programs, such as 8a, to achieve diversity in the contract awards they make. This does not meet the Supreme Court’s standard for strict scrutiny.”

Significantly, the report also finds that federal law does not specify protections for contractors who are the victims of discrimination, nor does any agency possess enforcement authority against violations. Among recommendations, the report (1) urges the Justice Department to develop guidance for agencies on how to implement race-neutral alternatives, (2) asks the White House to assemble a task force charged with determining what data agencies need to collect in order to measure and assure the appropriateness of race-neutral or race-conscious procurement programs, and (3) asks Congress to enact legislation expressly prohibiting race discrimination in federal contracting, and establishing effective enforcement procedures.

The Commission passed the report at its July 22, 2005 meeting. The report contains a dissenting statement from one Commissioner. Copies can be ordered by contacting the Commission’s publications office at 202-376-8128 or by accessing /pubs/pubsndx.htm.