Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 unlikely to succeed such alternative might be... [S]ome degree of practicality is subsumed in the exhaustion requirement."75 2. Set Targeted M/WBE Goals Numerical goals or benchmarks for M/WBE participation must be substantially related to their availability in the relevant market. 76 For example, the DBE pro- gram regulations require that the overall goal must be based upon demonstra- ble evidence of the number of DBEs ready, willing, and able to participate on the recipient's federally assisted contracts. 77 'Though the underlying esti- mates may be inexact, the exercise requires the States to focus on establishing realistic goals for DBE participation in the relevant contracting markets. This stands in stark contrast to the program struck down in Croson."78 Goals can be set at various levels of particularity and participation. The City may set an overall, aspirational goal for its annual, aggregate spending. Annual goals can be further disaggregated by race and gender. Approaches range from a single M/WBE or DBE goal that includes all racial and ethnic minorities and non -minority women, 79 to separate goals for each minority group and women. 80 The Eighth Circuit has recognized that goal setting is not an absolute science. In holding the DBE regulations to be narrowly tailored, the court noted that "[t]hough the underlying estimates may be inexact, the exercise requires the States to focus on establishing realistic goals for DBE participation in the rele- vant contracting markets.i81 However, sheer speculation cannot form the basis for an enforceable measure. 82 It is settled case law that goals for a particular solicitation should reflect the particulars of the contract, not reiterate annual aggregate targets; goals must be contract specific. "Standard" goals are not defensible. Contract goals must be based upon availability of M/WBEs to perform the anticipated scopes of the contract, location, progress towards meeting annual goals, and other factors. 75. Coral Construction, 941 F.2d at 923. 76. Webster, 51 F.Supp.2d at 1379, 1381 (statistically insignificant disparities are Insufficient to support an unexplained goal of 35 percent M/WBE participation in County contracts); see also Associated Utility Contractors of Maryland, Inc. v. Mayorand City Council of Baltimore, et al., 83 F.Supp.2d 613, 621 (D. Md. 2000) ("Baltimore 1"). 77. 49 C.F.R. § 26.45 (b) 78. to. 79. See 49 C.F.R. §26.45(h) (overall goal must not be subdivided into group -specific goals). 80. See Engineering Contractors 11, 122 F.3d at 900 (separate goals for Blacks, Hispanics and women). 81. Sherbrooke, 345 F.3d. at 972. 82. BAGC v. Chicago, 298 F.Supp.2d at 740 (City's MBE and WBE goals were "formulistic" percentages not related to the availability of firms). © 2020 Colette Holt & Associates, All Rights Reserved. 37