Revised City of South Bend Disparity Study Report

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City of South Bend Disparity Study 2020 proper focus is whether the burden on third parties is "too intrusive' or "unac- ceptable". Burdens must be proven and cannot constitute mere speculation by a plain- tiff.98 "Implementation of the race -conscious contracting goals for which TEA - 21 provides will inevitably result in bids submitted by non -DBE firms being rejected in favor of higher bids from DBEs. Although the result places a very real burden on non -DBE firms, this fact alone does not invalidate TEA -21. If it did, all affirmative action programs would be unconstitutional because of the burden upon non-minorities."99 Narrow tailoring does permit certified firms acting as prime contractors to count their self -performance towards meeting contract goals, if the study finds discriminatory barriers to prime contract opportunities and there is no requirement that a program be limited only to the subcontracting portions of contracts. The DBE program regulations provide this remedy for discrimination against DBEs seeking prime work,100 and the regulations do not limit the appli- cation of the program to only subcontracts.101 The trial court in upholding the Illinois DOT's DBE program explicitly recognized that barriers to subcontracting opportunities also affect the ability of DBEs to compete for prime work on a fair basis. This requirement that goals be applied to the value of the entire contract, not merely the subcontracted portion(s), is not altered by the fact that prime contracts are, by law, awarded to the lowest bidder. While it is true that prime contracts are awarded in a race- and gender -neutral manner, the Regulations nevertheless mandate application of goals based on the value of the entire contract. Strong policy reasons support this approach. Although laws mandating award of prime contracts to the lowest bidder remove concerns regarding direct discrimination at the level of prime contracts, the indirect effects of discrimination may linger. The ability of DBEs to compete successfully for prime contracts may be indirectly affected by discrimination in the subcontracting market, or in the bonding and financing markets. Such discrimination is particularly burdensome in the construction industry, a highly 98. Rowe, 615 F.3d at 254 (prime bidder had no need for additional employees to perform program compliance and need not subcontract work it can self -perform). 99. Western States, 407 F.3d at 995. 100. 49 C.F.R. 4 26.53(g) ("In determining whether a DBE bidder/offeror for a prime contract has met the contractor goal, count the work the DBE has committed to perform with its own forces as well as the work that it has committed to be performed by DBE subcontractors and suppliers."). 101. 49 C.F.R. 4 26.45(a)(1). 40 0 2020 Colette Holt & Associates, All Rights Reserved.