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6 Goal IX 1 (2000)

handle is hein.journals/goal6 and id is 1 raw text is: Affirmative action in federal contracting has undergone sig- nificant changes in the aftermath of the Supreme Court's holding in Adarand Constructors, Inc. . Pena, 115 S. Ct. 2097 (1995). The government describes the changes as a mend it, don't end it approach to affirmative action. Minority, women-owned, small and dis- advantaged businesses (SDBs) must stay abreast of these changes in procurement rules to effectively secure and retain gov- To survive strict scrutiny, a program must serve a compelling governmental interest and be narrowly tailored to accomplish this goal.. ernmient contracts. A review of the U.S. Department of Defense (DoD) regula- tions offers examples that are similar to other federal agencies' recently revised procurement rules. In Adarand, the Supreme Court held that federal procurement programs that use race as a basis for decision making are subject to the strict scrutiny stan- dard. To survive strict scrutiny, a pro- gram must serve a compelling govern- mental interest and be narrowly tailored to accomplish this goal. Six factors are considered when determining the narrowly tailored prong of strict scrutiny: 1. whether the government considered race neutral alternatives and determined that they would prove insufficient before resorting to -ace conscious action; ). the scope of the program and whether it is flexible; 3. whether race is relied on as the sole factor in eligibility, or whether it is used as one factor in the eligibility determina- tion; 4. whether any numerical target is reasonably related to the number of qualified minorities in the applicable pool; 5. whether the duration of the pro- gram is limited and whether it is subject to periodic review; and 6. the extent of the burden imposed on non-beneficiaries of the program. (See the Department of Justice Proposed Reforms to Affirmative Action in Federal Procurement, p. 2.) AMERICAN BAR ASSOCIATION In order to comply with the Supreme Court's holding in Adarand requiring a more narrowly tailored affirmative action program, the federal government created the following three procurement mechanisms to encourage the use of SDBs: 1. a price evaluation adjustment of tIp to 10 percent; 2. a source selection evaluation factor or subfactor for a planned SDB partici- pation, primarily at the subcontract level, in the performance of the contract; and 3. a monetary incentive for subcon- tracting with SDBs. The administrator of the Office of Federal Procurement Policy, based on recommendations made by the Department of Commerce, will annually publish the authorized SDB procurement mechanisms for the year. According to the Department of justice's proposed reforms, the benchmarks theoretically represent the percentage of minority contracts that one would reasonably expect to find in a market absent of dis- crimination or its effects. A benchmark for the DoD of 5 percent of the total budget is established in 10 U.S.C. 5 2323. This percentage is a goal for the DoD. If the DoD wishes to grant more than 5 percent of its total budget to SDBs it may do so; however, the mechanisms listed above may not be used after the 5 percent target has been reached. continied on page 6 COMMISSION ON OPPORTUNITIES OR MINORITIES IN IHE PROFESSION l

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