91视频

In June I wrote a column for the 91视频 about the decision by the Washington State Department of Transportation to exclude non-minority woman-owned businesses to meet Disadvantaged Business Enterprise (DBE) goals on federally funded contracts.

As reported, on June 1, WSDOT implemented a waiver from the United States Department of Transportation (USDOT) that excluded from consideration non-minority woman-owned businesses from meeting DBE contract goals on WSDOT projects. WSDOT requested the waiver in 2014 because a study performed by BBC Research and Consulting (BBC) concluded that non-minority woman-owned businesses did not face disparities in performing work on WSDOT projects.

Yet, less than four months later, in a Sept. 13 letter, WSDOT asked USDOT to rescind the waiver because a new study showed that non-minority woman-owned businesses were actually facing disparities on WSDOT contracts. The initial DBE study analyzed 鈥渄ata from federal fiscal years 2009 through 2011 and demonstrated that non-minority women-owned DBEs did not face substantial disparity. Based on the results of this study, and in order to maintain a legally defensible and narrowly tailored DBE program, WSDOT requested a waiver to remove non-minority woman-owned DBEs from the race and gender-conscious component of the DBE Program.鈥�

In April 2016, WSDOT hired Colette Holt & Associates (CHA) to conduct an updated 鈥淒BE Program Disparity Study.鈥� This study analyzed contracts between federal fiscal years 2012 through 2015. CHA concluded that 鈥渢he survey results strongly suggest that minorities and women continue to suffer discriminatory barriers to full and fair access to contracts and associated subcontracts.鈥� In addition, the study published the following findings from their anecdotal survey, in which 78 minority- and women-owned firms participated:

• 64.10 percent answered yes to the question 鈥淒o you experience barriers to contracting opportunities based on race and/or gender?鈥�
• 64.10 percent answered yes to the question 鈥淒o you have access to informal and formal networking information and have the same access to the same information as other non-DBE firms in your industry?鈥�
• 56.41 percent answered yes to the question 鈥淚s your competency questioned based on your race and/or gender?鈥�
• 11.6 percent reported they have unequal access to insurance; 16.67 percent reported they have unequal access to surety bonding services; and 29.49 percent reported they have unequal access to financing and business capital.
• 65.38 percent reported they are solicited for WSDOT or government projects with DBE goals.
• 56.41 percent reported they are solicited for private projects and projects without DBE goals.
• 48.72 percent stated that WSDOT and/or prime contracts pay them promptly.
• 48.72 percent reported they experience job-related sexual or racial harassment or stereotyping.
• 24.36 percent stated they experience discrimination from suppliers or subcontractors because of their race and/or gender.

40.26 percent had accessed some type of supportive services or other program to assist DBEs and small firms: 7.79 percent had participated in financing or loan programs; 9.09 percent had accessed bonding support programs; 12.99 percent had participated in a mentor-prot茅g茅 program or relationship; 18.18 percent had received support services such as assistance with marketing, estimating, information technology, etc.; and 20.78 percent had joint ventured with another firm.

BBC鈥檚 study (which had been heavily criticized by many organizations as being fundamentally flawed) analyzed contracts between federal fiscal years 2009 and 2011, but reached a wholly different conclusion 鈥� non-minority woman-owned businesses should be excluded from satisfying DBE goals on WSDOT projects. The waiver was valid until 2020 and allowed WSDOT to extend it at its request or 鈥渦ntil it is no longer necessary.鈥� The waiver apparently became no longer necessary within just a few months after it was implemented.

Although the CHA study comes just five years after BBC performed its study, WSDOT claims that the waiver to preclude non-minority woman-owned businesses from meeting DBE goals 鈥渋s no longer reflective of current marketplace conditions in Washington State.鈥� WSDOT has asked USDOT to expedite the handling of the rescission so that non-minority woman-owned businesses can be used to meet DBE goals on WSDOT contracts.

Since the waiver has not been rescinded by USDOT, the waiver is still in effect for WSDOT projects that receive federal funding. Contractors should carefully review the language in the contracts that they are bidding to ensure that they are complying with the DBE requirements.

Paige Spratt is a construction lawyer for Schwabe, Williamson & Wyatt. She has a bachelor鈥檚 degree in construction management, and professional experience as a construction manager. Contact her at 360-905-1433 or [email protected].