Message from the Chair: Kelsey Funes (Volume I)

I am so honored to assume the Division 1 mantle from my friend, Tom Dunn, and look forward to carrying on his good work.

For those of you who don’t know me, I’d like to take this opportunity to share a bit about my background. I grew up in New Orleans and went to LSU for undergraduate and law school. (Geaux Tigers!) I started my practice in 1997 at Phelps Dunbar LLP in Baton Rouge, where I still practice today. I manage the litigation group in the Baton Rouge office of the firm. I practice as a construction lawyer full time and serve on the Construction Panel of the American Arbitration Association and serve as a mediator in construction cases.

I am married to Dr. Chris Funes (the world’s best pediatrician) and we are the parents to two high schoolers. My son is a high school senior and my daughter is a sophomore. So, when I am not lawyering, I have been spending my time lately touring colleges, prepping for homecoming, and helping to teach my daughter to drive (all very relaxing!!). We also have a very sweet (and very hairy) rescue dog, Maggie, who makes sure we get lots of walks.

I started attending Forum meetings almost 20 years ago. Division 1 created a gateway for me to build relationships and learn how to be a better construction lawyer. I’ve gained so much value from the Forum and can’t wait to pay it forward!

During my tenure as chair, I plan to keep up all the fantastic work that Division 1 has been doing. Over the next year, we will be focusing several of our programs on discovery which is the bread and butter for litigators and is in a season of change with the incorporation of AI. I have found that the best way to maximize Forum membership and deepen Forum relationships is by helping to do the work of the Forum.

I’m looking forward to seeing many of you in Washington D.C. later this week at the Forum’s Fall Meeting. We will be kicking off the meeting with a 2-hour planning retreat on Wednesday morning (September 27) at 9 am which any Division 1 member should feel free to join. 

On Wednesday afternoon we are presenting another fantastic practicum, A Guide to Bid Protests, which will offer valuable insight from experienced speakers on how to successfully prosecute a bid protest. 

On Thursday (September 28), our luncheon presentation is "A View from the Arbitrator’s Bench" which should not be missed by anyone who arbitrates construction cases. 

Finally, on Thursday evening, we will have a great time socializing and playing mini golf with D1 friends new and old at The Puttery. For tickets, go to the following link: http://Sendomatic.com/eY2Vk or find me or a member of the D1 Steering Committee to get the QR code to sign up. If you are attending the Fall meeting, I invite you to join us for all of these outstanding activities.

I look forward to working with all of you and encourage anyone with program ideas and suggestions to reach out to me.

BOOK CLUB SERIES: Everything You Want to Know About Construction Arbitration But Were Afraid to Ask

John Foust (left) and Andy Ness (right)

I recently had the pleasure of speaking with construction law notables John Foust and Andy Ness to discuss the release of their new book—Construction Arbitration: The Advocate’s Practical Guide. The goal of their book: to teach attorneys what they need to know to maximize their effectiveness in the arbitration context. To that end, the book covers every aspect of the arbitration process including motion practice, conduct as an advocate, presentation of the case, and post-hearing submissions. Read on for Andy and John’s candid, behind-the-scenes take on how this book came to be and why you should get your copy now, while supplies last!

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Q: Who is the target audience for this book?

Andy:  In the editing process (and in writing my own chapter on Navigating an International Construction Arbitration) I pretended that I was speaking with a construction lawyer who was a few years out of law school, with some litigation experience, who was getting ready to take on a significant and complex construction arbitration for the first time.  The book presupposes knowledge of the basics and tries to anticipate the questions that would be asked when you are trying to think through the whole arbitration process from start to finish. What should my pleadings look like? How much discovery am I likely to be able to obtain? How should my demeanor be different from what I would do in a courtroom? How much should I object during the hearing? In a nutshell, it’s “What do I need to know to maximize my chances of success in the arbitration setting?”

Q: What was the inspiration behind this book? Why this topic and why now?

John: There is nothing like it out there that we could find. There are a couple of much longer, scholarly treatise-like books about arbitration law, but nothing that was concise, readable, and practical. We wanted to provide something useful and accessible that would get you on the right track in a construction arbitration, right from the start — things that our authors had to learn on-the-job. As to timing, it just seemed overdue!

Q: Is this the first time this topic has been tackled in an ABA-sponsored text? What do you think sets this book apart from the others?

John: It’s the first, all right, and we hope it will be something of a model for other Forum books down the road. Keep it concise and practical, rather than trying to produce a lengthy tome that looks impressive, but will mostly just sit on a shelf.

Q: How did you go about creating the framework for the book?

Andy: We intentionally took a soup-to-nuts approach, consistent with the goal to get the reader ready for every stage and part of the arbitration process, from deciding whether arbitration is right for the dispute (where you have that option) to handling a post-award motion to vacate.

Q: The list of people who authored chapters in this book reads like a veritable “who’s who” in construction law. What was it like collaborating with such an impressive group of folks?

Andy:  It definitely is an All-Star team of authors, and that was the idea from the outset. Let’s find the best group of people who have had a highly successful track record as arbitration advocates, and (for the most part) have, in more recent years, seen arbitrations mainly from the vantage point of an arbitrator. Six of the ten lead authors are former Forum Chairs, and all ten are members of the American College of Construction Lawyers.

Working with this group was a lot of fun and pretty easy. While they are all busy, they turned in high-quality first drafts, mostly on schedule. And they all are self-deprecating as a rule and keep their egos in check.  They appreciated that, despite extensive experience, they don’t know everything and were receptive to adding ideas and insights where we, as editors, suggested something.

Q: What was the biggest challenge you encountered in putting the book together? Any regrets/lessons learned you care to share?

John: Putting together any book, even when 90% of the chapters are authored by others, is a big undertaking. No regrets, but it always works out to be considerably more effort than you anticipated at the start. The biggest challenge is just keeping at it; finding time every month to push the book ahead, for seemingly endless months, even when you are busy with work that you get paid for!

Q: You state in the book's introduction that even the most seasoned construction attorney can benefit from this book...As experienced practitioners yourselves, what did you learn in putting together this book that surprised you?

Andy: Perhaps surprisingly, I learned the most from the international arbitration chapter that I wrote. I asked two other chapter authors (Wendy Venoit and Zach Torres-Fowler) who do a lot of international arbitration to review and comment on my draft. Each of them brought out several interesting points from their own experience that I had not encountered, and those added real value to the chapter. It was also interesting to see that the authors of the discovery-related chapters (Deb Ballati and Jim O’Connor) had some different viewpoints as to how much discovery is commonly allowed.

Q: In what ways has construction arbitration changed or evolved in recent years? Will this book provide some “continuing education” on the current best practices in this space?

Andy: Construction arbitration evolves at a more rapid pace than most appreciate. This occurs as different ways of speeding the process and making it more efficient are tried and spread organically when they work well. What we are seeing currently is greater adoption in the U.S. of practices used with frequency in international arbitration, like the use of witness statements in lieu of direct examination and simultaneous testimony from matched expert witnesses. This borrowing of successful ideas used elsewhere will likely only accelerate as more advocates and arbitrators have favorable experiences with them. We included discussion of many such new ideas and techniques, and not just in the international arbitration chapter, to help this process along and keep the book relevant, hopefully for many years to come.

CLICK HERE TO PURCHASE A COPY OF

CONSTRUCTION ARBITRATION: THE ADVOCATE'S PRACTICAL GUIDE 

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Editor Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

Consultant Corner: Key Players and Common Issues in Delegated Design

Delegated design as set forth in construction documents for buildings, while an often-used instrument, can be misunderstood or poorly executed by the Owner, Design team, and/or Construction team, and result in disastrous consequences. The term ‘delegated design’ as commonly used in the AIA B-101 Contract between the Owner and Architect means that “if the Contract Documents specifically require the Contractor to provide professional design services or certifications by a design professional related to systems, materials or equipment, the Architect shall specify the appropriate performance and design criteria that such services must satisfy.”

The Key Parties involved include the Architect and Engineer of Record, the General Contractor, the Specialty Contractor, and the Specialty or Delegated Engineer; their relationship can graphically be described as follows:

Typical delegated design items include stairs, handrails, davits, structural steel connections, precast concrete components, elevator support rails and beams, façade components and cladding, and other such items where, ideally, the Contractor and the Contractor’s engineer can provide the components by taking advantage of the Specialty Contractor’s means and methods and provide that value to the Owner.  The delegated design may include unique attributes associated with the selected Contractor, such as concrete strengths, manufacturing processes, glass types, steel connection hardware, configurations of components, and specialty fabrications.

Owner

On behalf of the Owner, the Design team, consisting of the architects and engineers included in the term ‘Architect’ above, decides whether to delegate a portion of the design to the Contractor.  Sometimes the designers believe they can reduce their own labor costs by delegating some of the design, but commonly this decision results in more time spent for the Architect in specifying the performance and design criteria as well as performing a close review of the shop drawings and calculations.  It is important to note that the Design team must coordinate all of the dimensional aspects of the building in order to meet the Owner’s criteria for the use and function of the space.  This means that the dimensions of delegated components must be worked out and coordinated by the architects and engineers, not left to the imagination and whims of the delegated Contractor and their engineer.

Design Team

In the graphic illustration above, the Architect of Record and the Structural Engineer of Record are typically contractually bound to each other, and responsible for the coordination of the project design.  The delegated components are technically delegated to the Contractor or Specialty Contractor, who engages the Specialty or Delegated Engineer to design the components and connections.  There is no ability, nor contractual mechanism, for the Delegated Engineer to directly coordinate with the Architect of Record to confirm wall thicknesses, beam depths, clearances, conceptual connections, column locations and sizes – these must be worked out between the Architect and Engineer of Record.

In some states such as Florida, there exist Administrative Rules or Codes that prescribe the details required of the architect and engineer in delegating the design of components.  These can include the configuration (size, spacing, shape) of the components, as well as details of supports, anchors, and connections.

Construction Team

The Contractor may receive a set of drawings from the architect and engineers (the ‘Architect’) that contain delegated designs that do not sufficiently ‘spell out’ the appropriate performance and design criteria, or that are missing the configuration and sizes of the components such that coordination of the work will be required.  In those instances, the Contractor should ‘raise the flag’ and note that the particular design has not been properly delegated – and not just hope that the information can be flushed out during the shop drawing review process.  Again, there is no contractual link between the Delegated Engineer and the Architect – and therefore, the necessary coordination between disciplines cannot occur in a proper and timely manner.

Summary

Delegated design can provide cost, schedule, and quality improvements for a building Owner if the Architect follows the guidelines for properly delegating the design of components to the Contractor, and the Contractor engages a Delegated Engineer who provides calculations and drawings for the component design in accordance with the performance and design criteria specified by the Architect.

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Author Bill Bast specializes in the design and investigation of building structures, and has forty years of experience as a structural and forensic engineer, construction manager, and contractor. He is a Past President of SEAOI and NCSEA and serves as an expert witness on structural engineering and standard of care issues, and can be reached at william.bast@socotec.us

Editor Thanh Do is an Associate in Thornton Tomasetti, Inc.'s Forensics practice group. As a structural engineer, structural failure analyst and investigator, Dr. Thanh Do examines infrastructure inadequacies and determines the root cause of the alleged failures. He specializes in Design-Build project delivery, quantity growth investigation, building collapse investigation, standard of care assessment, construction defects and design errors/omissions evaluation.

Students for Fair Admissions: Shaking the Foundations of EEOC Programs and M/WBE Requirements

On June 29, 2023, the Supreme Court issued a landmark decision, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, holding that race-based affirmative action programs in college admissions violate the Equal Protection Clause of the Fourteenth Amendment. 143 S. Ct. 2141, 216 L. Ed. 2d 857 (2023).  On July 13, 2023, thirteen state Attorney Generals, relying on Students for Fair Admissions, issued a joint letter to the CEOs of the Fortune 100 companies, urging the elimination of all race-based programs in EEOC and government and private contracting. On July 19, 2023, a Tennessee district court judge issued an injunctive order against the Small Business Administration’s 8(a) application program on the basis of the program’s race-based presumption of disadvantage. Ultima Servs. Corp. v. U.S. Dep't of Agric., No. 220CV00041DCLCCRW, 2023 WL 4633481 (E.D. Tenn. July 19, 2023). 

The message to be taken from these developments: all race-based programs and, by extension, potentially all gender-based programs—including ones that require or reward participation of Minority Business Enterprises (“MBE”) or Women Business Enterprise (“WBE”) in construction programs—currently stand on shaky ground.

This post will explain the constitutional foundations at play, the decisions shaking things up, and why well-rounded dialogue is urgently needed to address the status of these programs before they’re dead in the water.

An MBE/WBE Constitutional Law Primer in Construction

Before examining the recent court cases in more detail, it may be helpful to understand how MBE and WBE programs developed from a constitutional law basis. Following passage of the Civil Rights Act of 1964, cities and municipalities began implementing strong race and gender specific remedial programs. The programs operated for years with aggressive minority and women contracting goals. Designed to bring disenfranchised players to the table, the ever-increasing goals, while genuinely motivated, slowly began losing relevance when measured against local statistics. In 1989, a key Supreme Court decision rocked the commercial construction industry by reviewing and declaring unconstitutional Richmond, Virginia's race-based program. See City of Richmond v. J.A. Croson Co. (“Croson”), 497 U.S. 547 (1989). By extension, this decision invalidated the majority of most state and local race-based programs then in existence.    

The goal program challenged in Croson included 30% goals for its defined minority and women groups. It was not flexible, thereby converting stated goals into quotas. It identified goals for certain groups, like Alaskan Inuit, who were not statistically present in Richmond. The 30% goal also lacked statistical support based on current local availability and capability analysis.    

The Croson decision was famously authored by Justice Sandra Day O'Connor, herself the victim of discrimination. Graduating at the top of her legal class, she nonetheless was unable to obtain employment as a lawyer and initially was limited to working as a legal secretary. Noting discrimination continues to be a real and present problem, Justice O'Connor nonetheless outlined the standards for justifying race-based programs. The Croson factors, as they became known, stated:

1. Any program based on race is inherently suspect and thus sustainable only under a "strict scrutiny" standard of review.
2. "Strict scrutiny" requires the government to prove:
1. A  "compelling interest" in creating the program (i.e. whether the goal is sufficiently important enough to justify a particular use of suspect classification) AND
2. The program is "narrowly tailored" to address that interest.

Croson identified the data necessary to prove the "compelling interest."  Later known as Croson or Disparity Studies, these data-intensive reviews analyzed: (1) specific identification of the MBE/WBE firms located in that region; (2) the scopes and magnitude of work they were capable of performing; and (3) the forms and types of discrimination barring them from access, including lack of educational opportunities, business education and formation, credit and financing, bonding, and job procurement. Without a current Croson study, a program could not meet the "compelling interest" element of strict scrutiny.

Croson also required remedial programs to be "narrowly tailored." A "narrowly tailored" program required proof that it:

1. Was more than racial balancing;
2. Was based on the number of local, qualified MBE and WBE firms in the region who were capable of performing the work required in each contract;
3. Was not over-inclusive by presuming discrimination against certain minorities;
4. Was not under-inclusive by omitting race neutral measures designed to assist small businesses in general, and
5. Did not implement either expressly or by practice mandatory quotas.

These factors, which would govern for over 34 years, still left some gaping holes.

First, Croson addressed race-based local and state programs. This left gender-based programs impliedly covered but not constitutionally analyzed at that time. This remains at issue even today.  Gender-based classifications are reviewed under a different—and more lax—"intermediate scrutiny" standard but are nonetheless typically lumped in with race-based programs under strict scrutiny.

Croson was also limited to local and state programs; it did not apply to federal programs which, at that time, were reviewed under the same, softer "intermediate scrutiny" review. "Intermediate scrutiny" required the program to:  (1) serve an important governmental interest; and (2) be "substantially related" to achieving the objective. Craig v. Boren, 429 U.S. 190 (1976). This softer review made both gender-based, and federal MBE programs tougher to legally challenge, permitting a presumption federal agencies could rely on broader, more generalized national data to support findings of past discrimination. 

This different treatment ended in 1995 through three cases known collectively as the Adarand cases, which were decided between1992 and 2001.[i] Adarand held Croson’s "strict scrutiny" standards for race-based programs were as equally applicable to federal programs as to state and local programs. This approach remained the law of the land through today.

MBE/WBE Programs Under the Croson and Adarand Regimes

While Croson and Adarand operated to bring statistical foundations to local, state and federal programs, and where the disparity studies identified and revealed important data on race and gender availability and participation, the history of these studies also revealed a not-so-surprising trend. When there were goals and strong enforcement incentives to meeting those goals, utilization was high.  This created a legal conundrum in that proof of success by its very nature disproved ongoing evidence of discrimination. In other words, if the goal was identified to remedy past discrimination, and a governmental entity hit or exceeded that goal, it statistically had "remedied" the past discrimination. For this reason, the programs were deemed to be short term in nature and to imply an end date. 

But the statistics also revealed another problem.  The utilization figures waxed and waned in accordance with the goals. Federal programs implementing annual adjustment, i.e. the increase or decrease of goals based on prior year's performance, reflected a corresponding bell curve of utilization. When goals were high, utilization was high. When goals were low, utilization was low. This reflected issues with the program's long-term performance and full realization of the remedial intent.[ii]  The programs also ignored legal precedent warning that an expiration of the programs was always anticipated and constitutionally required.

Students for Fair Admission's Roll-Back of Affirmative Action   

From 2018 to 2020, the Trump Administration's appointment of two Supreme Court justices formed one of the most conservative Supreme Courts since 1931.[iii] This ideological shift set the stage for the Students for Fair Admissions decision.

After providing a detailed analysis of legal precedent defining the parameters of race-based remedial programs over the years, the majority in Students for Fair Admissions concluded the remedial programs had outlived their time. While nominally limited to race-based university admissions programs under Title VI of the Civil Rights Act of 1964 (the "Act"), the decision contains language which seems aimed at future analysis of all race-based programs. Specifically, the Court states:

"[e]liminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality”— it is “universal in [its] application” . . . . “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” (citations omitted, emphasis added). 

Justice Gorsuch's concurring opinion impliedly expands application of the holding from Title VI cases (prohibiting discrimination in federally funded programs) to Title VII of the Act, which prohibits race-based discrimination in employment and government and private contracting.  This directly impacts EEOC compliance programs, MBE goal programs, and race-based, Diversity Inclusion programs.      

The Eastern District of Tennessee's Decision in Ultima

On July 19, 2023, a Tennessee federal district court in Ultima Services Corp. v. U.S. Department of Agriculture became the first to accept Justice Gorsuch's invitation to expand the holding of Students for Fair Admission to other contexts.

Following the guidelines enunciated in Students for Fair Admissions, the judge in Ultima issued an injunction against the Small Business Administration's ("SBA") 8(a) program because it incorporated a race-based presumption of social and economic disadvantage in its application process. Instead of appealing the district court's decision, the SBA posted a terse notice on its website stating:

"On July 19, 2023, the United States District Court for the Eastern District of Tennessee enjoined the SBA from applying a rebuttable presumption of social disadvantage to individuals of certain racial groups applying to the 8(a) Business Development Program. SBA has temporarily suspended new 8(a) application submissions to comply with the Court's decision. Thank you for your patience and interest in the 8(a) Business Development program." (Emphasis in original).[iv]

It is anticipated that the SBA’s compliance efforts will result in a new application process removing presumptions of disadvantage and instead require all applicants to submit a narrative outlining their particular evidence of same. 

Following the decisions in Students for Fair Admission and Ultima, the status of existing 8(a) certifications which were made on racial presumptions is uncertain. Equally uncertain is the impact these cases will have on numerous race-based programs currently in existence.        

The Cons of Overnight Elimination

Given the potentially far-reaching implications of the recent constitutional policy reversals, there is an amazing lack of discussion concerning proactive steps to address current M/WBE goals in contracts and EEOC Diversity Inclusion programs.  This silence is not only unwise but potentially devastating, as was evidenced in a 2005 Missouri case: Behavioral Interventions, Inc. v. Missouri Office of Administration.

In Behavioral Interventions, the plaintiff alleged the State's mandatory M/WBE requirement that 30% of the dollar value of contracts go to firms certified as M/WBE was unconstitutional where the goals were based on outdated statistics and had become inflexible quotas under Croson. The court agreed and granted a preliminary injunction holding the M/WBE program unconstitutional. Behavioral Interventions, Inc. v. Missouri Office of Administration, No. 04-0872-CV-W-GAF (W.D. Mo. Jan. 24, 2005) (order granting preliminary injunction). While the issuance of any future M/WBE goal projects was barred, the decision also suspended contracts for work-in-process that had been issued under unconstitutional M/WBE goals. As Missouri at that time lacked a corresponding "small business" program, the voided contracts could not be saved by conversion into a race and gender-neutral small business award. The court’s decision left all impacted participants reeling.

Contractors and owners scrambled to rebid significant amounts of MBE contract work already partially completed, but realized problems with: (a) how to classify court-voided contracts and what contract termination procedures applied; (b) whether the contract terms and procedures applied if a contract was deemed legally void; (c) how final payment and retainage issues were to be handled; (d) how to treat materials ordered and delivered but not yet incorporated or paid under the voided contracts; and, perhaps most importantly, (e) how warranties were to be honored where follow on contractors were understandably twitchy about warranting the work of another terminated contractor. It was, in two words: a mess.  

A negotiated settlement quickly brought Missouri's program into constitutional conformity while also creating a small business contracting program operating next to the M/W/DBE programs. But for a period of time, Behavioral Interventions’ overnight injunction left the parties in a world of hurt.  All government entities and their related construction partners face similar messes if the parties do not act proactively.

The Potential Impact of Students for Fair Admissions on Private Contracting

The impact of Students for Fair Admission is also filtering into private and EEOC corporate programs.  Referencing Students for Fair Admission, on July 13, 2023, Attorney Generals from thirteen states—Alabama, Arkansas, Indiana, Iowa, Kansas, Kentucky, Missouri, Mississippi, Montana, Nebraska, South Carolina, Tennessee and West Virginia—wrote the CEOs of the Fortune 100 companies urging them to:

"refrain from discriminating on the basis of race, whether under the label of "diversity,      equity and inclusion" or otherwise.  This includes preferences in hiring, recruiting,      retention, promotion, and advancement on race but also pressuring contractors to adopt racially discriminatory "quotas and preferences."[v] 

In response, on July 19, 2023, twenty state Attorney Generals—from Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington—argued Students for Fair Admission was limited to college admissions and not currently relevant to other programs. Although responding Attorney Generals advocated the importance of recognizing historic and ongoing inequities, the value of workplace diversity, and the socio-political-economic reasons justifying diversity as a primary objective, it is unclear what the companies are to do.

Concluding Remarks

It is clear the ripples created by Students for Fair Admission will be far-reaching. While, the constitutional validity of race and gender considerations in employment, government, and private contracting is unsettled for the time-being, the writing is on the wall. Just as Croson changed the nature of contracting goal programs overnight, Students for Fair Admission, as applied in the Ultima case, likely spells the end of race-specific remedial programs as we know them. While gender-based programs continue to float somewhere in legal limbo, it is likely ANY program currently based on race and gender is legally vulnerable. If parties continue to avoid confronting the issue, there is a significant chance they will be caught unprepared and subject to consequences similar to Missouri's Behavioral Interventions case.

Anyone who finds themselves disheartened by recent court developments and curious about what steps can be taken, here are some ideas: 

1. IMPLEMENT SMALL BUSINESS CONTRACTNG PROGRAMS. Immediately see if your local government or state has a small business contracting goal program.  If so, do an immediate outreach ensuring all current certified MBE and WBE companies are also registered under the small business program.   If no such program exists, take the steps needed to authorize, enact, and implement one. 
2. ORGANIZE BRAINSTORMING ROUNDTABLES WITH STAKEHOLDERS. Meet with interested players in your community to discuss the impact of these responses to Students for Fair Admission and how it impacts diversity and inclusion programs in your area.  Brainstorm and be proactive in suggested approaches.
3. CHANGE THE FOCUS. Continue the discussion on the proven benefits of diversity in the workplace, but change the focus to culture, geography, and the benefits of differing perspectives versus a specific race or gender focus.
4. CREATE LOCAL HUB-ZONE TYPE AWARD PROGRAMS. Consider incorporating HUB-Zone like programs at the local and state levels.  Currently a federal program, HUB-Zone channels 3% of all federal contracts to Hub-Zone qualified companies.  Certification requirements include: (1) the company's primary business office is located within a designated economically disadvantaged area and (2) the company employs 35% of its workforce from that area.[vi]  These types of programs meet many of the goals of the M/W/DBE program but in a race and gender-neutral manner. The program also generates economic viability to economically distressed areas.
5. CHANGE THE MESSAGE.  For minority and female employees and business owners, the sales pitch can no longer be "hire me because of past discrimination."  The new dialogue needs to be "hire me because:  (1) I'm good; (2) I provide great goods and services in a timely, workmanlike and cost efficient manner; (3) I'm important economically, socially and politically to the community and to the nation; (4) I'm creating tax revenues for the community; and (5) I'm creating an example for the next generation of politically, socially and economically important target groups who have earned their place at the table.

There are as many creative approaches available as there are intelligent people facing the issue.  The key is to start the discussions that lead to the solutions.  Don't simply ignore the problem in the hope it will go away.  It won't.  

© Denise Farris Scrivener, Farris Legal Services LLC.  (August 28, 2023).  All rights reserved.  This article may not be copied or reproduced without the author's permission. 

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Author Denise Farris Scrivener practices commercial construction, equine and veterinary law. She has authored numerous articles and treatises on affirmative action in government contracting, including the American Bar Association's Forum on the Construction Industry "Government Contracting Desk Book". Her articles can be found at: www.farrislegal.net/blog. She may be contacted at denise@farrislegal.net. For further ideas on new ways to approach diversity, see her blog on: "A New - And Possibly Improved - Affirmative Action Approach".  https://farrislegal.net/a-new-and-possibly-improved-affirmative-action-approach/.

Editor Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

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[i] The Adarand cases include: ADARAND I:  Adarand Constructors, Inc. v. Skinner, 790 F. Supp. 240, 241 (D. Colo. 1992), aff’d sub nom. Adarand Constructors, Inc. v. Pena, 16 F.3d 1537 (10th Cir. 1994), vacated, 115 S. Ct. 297 (1995); Adarand Constructors, Inc. v. Pena 16 F.3d 1537, 1539 (10th Cir. 1994), vacated, 115 S. Ct. 2097 (1995); Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995).  ADARAND II:  Adarand Constructors, Inc. v. Pena, 965 F. Supp. 1556(D. Colo. 1997); and   ADARAND III:  Adarand Constructors, Inc. v. Mineta, 122 S.Ct. 511 (2001). See also:  "Diversity in Government Contracting", Denise E. Farris, Patricia A. Meagher, Larry D. Harris, ABA Forum on the Construction Industry 2012 Annual Meeting "Advanced Project Delivery: Improving the Odds of Success" (Las Vegas Apr 26-28, 2012).

[ii] See "Affirmative Action and the Utilization of Minority- and Women-Owned Businesses in Highway Procurement", Justin Marion,  University of California (February 2009), available at: https://people.ucsc.edu/~marion/Papers/revised%20manuscript.pdf, last visited on September 5, 2023.

[iii] See https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative.

[iv] See https://certify.sba.gov/

[v] See "Shaking the Foundations of DEI? The Impact of the Students for Fair Admissions Decision on Corporate Diversity Initiatives", Dawn Siler-Nixon, Nancy Van Der Veer Holt, and Danielle E. Pierre, Ford Harrison July 24, 2023.

[vi] https://www.sba.gov/federal-contracting/contracting-assistance-programs/hubzone-program.