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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

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