Revised City of South Bend Disparity Study Report

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City of South Bend Disoarity Study 2020 These findings support the inference that discrimination remains a barrier to full and fair opportunities for all firms, and in the absence of contract goals, M/WBEs in many industries suffered significant disparities on City -funded jobs. Without the use of con- tract goals to level the playing field, the City would likely function as a "passive partici- pant" in the "market failure" of discrimination. We therefore recommend the implementation of a program that contains the necessary elements for greater suc- cess in reducing barriers and that employs national best practices to increase inclusion in government contracting. As a general matter, South Bend should model its program on the elements of the Dis- advantaged Business Enterprise ("DBE") Program for federally -assisted transportation contracts. 167 Courts have pointed to the agency's reliance on Part 26 as a guide as evi- dence that the local agency's program is constitutional. The Law Department should review all contracts to ensure that goal setting has been properly conducted and that provisions reflect the program. Based on this case law and national best practices for M/WBE program, we recom- mend the following elements of a narrowly tailored M/WBE program: A. Implement Race- and Gender -Neutral Measures The courts require that governments use race- and gender -neutral approaches to the maximum feasible extent to address identified discrimination. This is a critical element of narrowly tailoring the program, so that the burden on non-M/WBEs is no more than necessary to achieve the City's remedial purposes. Increased partic- ipation by M/WBEs through race -neutral measures will also reduce the need to set M/WBE contract goals. The following enhancements of the City's current efforts, based on the business owner interviews, the input from senior City management, and national best prac- tices for M/WBE programs, will help to meet these standards. 1. Implement an Electronic Contracting Data Collection, Monitoring and Notification System A critical element of this Study and a major challenge was data collection of full and complete prime contract and associated subcontractor records. As is very common, the City did not have the information needed for the inclusion of subcontractor payments in the analysis. There was no centralized database to track contract data, and the City did not track subcontractor data. All required information had to be created manually. Further, the City could not provide 167. 49 C.F.R. Part 26. 94 © 2020 Colette Holt & Associates, All Rights Reserved.