Appendix — South Florida Chapter of the Associated General Contractors of America, Inc. v. Metropolitan Dade County
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MAY 16 1984
No.
ailinlee AS.
IN THE
Supreme Court of the United States
OCTOBER TERM, 1983
SOUTH FLORIDA CHAPTER OF THE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, INC., et al.,
Petitioners,
Vv.
METROPOLITAN DADE COUNTY, FLORIDA, et al.,
Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
DAVID V. KORNREICH
(Counsel of Record)
GORDON D. ROGERS
MULLER, MINTZ, KORNREICH,
CALDWELL, CASEY, CROSLAND
& BRAMNICK, P.A.
Suite 1800
Two South Biscayne Blvd.
Miami, Florida 33131
(305) 358-5500
Attorneys for Petitioners
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
TABLE OF CONTENTS
Page
Appendix A
South Florida Chapter of the Associated General
Contractors of America, Inc., et al. v. Metropoli-
tan Dade County, Florida, et al., 723 F.2d 846
no caneeiibasieomennes la
Order Denying Suggestion for Rehearing En Banc
SERIES eee keen nen 36a
Order Granting Stay of Mandate Pending Petition
for Writ of Certiorari (April 11, 1984) —............ 40a
Appendix B
South Florida Chapter of the Associated General
Contractors of America, Inc., et al. v. Metropoli-
tan Dade County, Florida, et al., 552 F.Supp.
a ac ecietiinl 42a
Declaratory Judgment and Permanent Injunction
fe Se, ESS ea LN Oe 114a
Index To Relevant Dade County Ordinances, Resolutions
And Administrative Regulations
Resolution No. R-1672-81 (November 3,
| i ERS S SAAP EE Sse cn App. A—21a-23a
Ordinance No. 82-67 (July 20, 1982) ...... App. A—23a-27a
Regulations Governing Bid Procedures
Under Ordinance No. 82-67 _................. App. A—27a-3la
Resolution No. R-1350-82 (October 5,
DI sidalcad icaicasisbat Nate cashed ulgicidbapnsailnbigueat App. A—31a-33a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
No. 83-5001
SOUTH FLORIDA CHAPTER OF THE
ASSOCIATED GENERAL CONTRACTORS OF AMERICA, INC.,
et al.,
Plaintiffs-A ppellees, Cross-Appellants,
V.
METROPOLITAN DADE COUNTY, FLORIDA, e¢ al.,
Defendants-Appellants, Cross-Appellees.
Jan. 27, 1984
Appeals from the United States District Court
for the Southern District of Florida
Before KRAVITCH, HENDERSON and ANDERSON,
Circuit Judges.
KRAVITCH, Circuit Judge:
This case involves the constitutionality of a Metropoli-
tan Dade County ordinance and resolution granting pref-
erential treatment to blacks in its contract bidding proc-
ess. The ordinance allows the county to “set aside” con-
tracts for bidding solely among black contractors! and
1 The term “black contractor” as used in the challenged ordinance
and throughout our opinion denotes a contracting or subcontracting
business entity that is
at least 51 percentum owned by one or more Blacks, or, in the
case of a publicly-owned business, at least 51 percentum of the
2a
contains a “goals” provision by which the county can
require that a certain percentage of a contract’s value
be subcontracted to black contractors. The plaintiffs,
non-profit corporations and trade associations, brought
suit challenging the ordinance both facially and as ap-
plied to the county construction contract for the Earling-
ton Metrorail Station.
The district court held that the “set aside” provision
violated the Equal Protection Clause of the Fourteenth
Amendment and granted a permanent injunction. The
court, however, upheld the constitutionality of the
“goals” provision. South Florida Chapter of the Asso-
ciated General Contractors of america, Inc. v. Metropoli-
tan Dade County, 552 F.Supp. 909 (S.D.Fla. 1982)
{hereinafter cited as Metro Dade]. Both sides have ap-
pealed from the decision.
L
The district court made extensive factual findings of
the events leading up to the present controversy.2 The
court found that the May 1980 disturbances in Liberty
City had prompted the county to investigate the economic
and social opportunities of blacks living in the area. The
resulting studies concluded that race relations would con-
tinue to deteriorate unless steps were taken to enhance
the business opportunities of the black community.
On November 3, 1981, the Dade County Commission in
response to these findings adopted Resolution No.
R-1672-81.* The resolution recognized that past discrimi-
stock of which is owned by one or more Blacks; and whose
management and daily business operations are controlled by
one or more such individuals.
Metropolitan Dade County, Fla., Ordinance No. 82-67 (July 20,
1982).
2 The district court’s findings are binding unless clearly erroneous.
F.R.Civ.P. 52 (a).
8 Resolution No. R-1672-81 is set out in full in the Appendix.
ALANS IL tly SEITE Nag E etn aPC D
3a
nation had “to some degree” impaired the competitive
position of black-owned businesses, resulting in a “statis-
tically significant disparity” between the black popula-
tion, the number of black businesses, and the number of
county contracts awarded to black-owned enterprises.
The resolution proceeded to announce a “policy of devel-
oping programs and measures to alleviate the problem
. ., including specific race conscious measures.”
On July 20, 1982, the Dade County Commission
adopted Ordinance No. 82-67‘ as a measure designed to
implement its policy of fostering black business growth.
The Commission premised the ordinance on a finding
that:
Dade County has a compelling interest in stimulat-
ing the Black business community, a sector of the
County sorely in need of economic stimulus but
which, on the basis of past experience, is not ex-
pected to benefit significantly in the absence of spe-
cific race-conscious measures to increase its partic-
ipation in County contracts.
The ordinance required that all proposed county contracts
be reviewed to determine whether race-conscious meas-
ures would foster participation by black contractors and
subcontractors. Bid credits, set-asides, minority partic-
ipation goals and other devices were to be considered.
The district court summarized the administrative proce-
dures mandated by the ordinance as follows:
a. Each department is charged with the respon-
sibility of submitting its recommendations concern-
ing Black set-asides and goals on each construction
project under its jurisdiction;
b. A three member contract review committee
comprised of county officials is charged with the
responsibility of reviewing the Departmental recom-
* Ordinance No. 82-67 is set out in full in the Appendix.
4a
mendations and submitting a final recommendation
on Black set-asides and goals te the county commis-
sion for final action;
ce. Black subcontractors goals are to be based on
“the greatest potential for Black subcontractor par-
ticipation” and... “shall relate to the potential
availability of Black-owned firms in the required
field of expertise” ;
d. Availability of Black subcontractors should in-
clude “all Black-owned firms with places of business
within the Dade County geographic area” ;
e. Black set-asides shall be considered where there
exists at least three Black prime contractors with the
capabilities consistent with the contract require
ments;
f. A Black prime contractor can be under con-
tract for up three set-asides within any one year
period, but no more than one set-aside at a time;
g. Prior to implementation of a Black set-aside,
the county commission is to make findings that the
Black set-aside is “in the best interest of the County
in order to waive formal bid procedures”; and
h. Bid procedures limiting bids to Black prime
contractors would be implemented.°
Metro Dade, 552 F.Supp. at 922.
On July 21, 1982, the day following the passage of
Ordinance No. 82-67, the county received and opened bid
proposals for the Earlington Heights Station, part of a
billion dollar rapid-rail transit system financed with fed-
eral, state and local funds. A non-black prime contractor,
Peter Kiewit Sons’ Company, submitted the lowest bid.
The next lowest bid was tendered by Thacker Construc-
tion Company, a black prime contractor. These bids were
5 The regulations are set out in full in the Appendix.
5a
rejected for two reasons: (1) both exceeded the County
Engineer’s estimate of what the project should cost, and
(2) the amounts of the bids had become public, rendering
it impossible to conduct competitive bid negotiations
under applicable federal regulations. The County Man-
ager then proposed, and the Commission agreed, that the
Earlington Heights contract be reviewed under the newly
enacted ordinance.
After reviewing departmental recommendations, the
Contract Review Committee proposed that the Commis-
sion waive the use of formal competitive bids, setting
aside the Earlington Heights contract for competitive
bidding exclusively among black contractors. In accord-
ance with the administrative procedure provided by the
ordinance, the Contract Review Committee found that
there were a sufficient number of licensed black contrac-
tors in Dade County that possessed the requisite financial
and technical capabilities to ensure competition for the
contract. Additionally, the Committee suggested the in-
clusion of a subcontractor goal requiring that fifty per-
cent of the contract’s dollar value be awarded to black
subcontractors. When combined with the general require-
ment that the prime contractor personally perform
twenty-five percent of the contract, this meant that
seventy-five percent of the Earlington Heights contract
was being set-aside solely for black contractors.
On October 5, 1982, the Dade County Commission
passed Resolution No. R-1350-82 * adopting the Commit-
tee’s recommendations. The County issued notice that the
contract was open for bidding subject to the one hundred
percent set-aside and the fifty percent subcontractor goal.
The closing date for submission and the opening of bids
was set for November 17, 1982.
The plaintiff-appellees filed a complaint in the Southern
District of Florida on November 12, 1982, seeking declar-
* Resolution No. R-1350-82 is set out in full in the Appendix.
6a
atory and injunctive relief. Jurisdiction was premised
upon 28 U.S.C. § 1348 as an action seeking relief pursu-
ant to 42 U.S.C. §§ 1981 and 1983 and 28 U.S.C. §§ 2201
and 2202. Two related state-law claims were asserted
under the district court’s pendent asserted under the dis-
trict court’s pendent jurisdiction. On November 16, 1982,
after both sides presented evidence at a hearing, the dis-
trict court granted the plaintiffs’ motion for a temporary
restraining order. On December 16, 1982, the court is-
sued its memorandum opinion, declaring the one hundred
percent set-aside unconstitutional, but upholding the use
of the fifty percent subcontractor goal.
Il.
Because resolution of appellees’ pendent claims might
render discussion of the federal constitutional claims un-
necessary, we address those claims first. Hagans v. Le-
vine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
The plaintiff-appellees first contend that the County’s
preferential treatment policy violates the Dade County
Home Rule Charter. The district court concluded that
the Commission, pursuant to section 4.03(D) of the
Charter, may waive competitive bidding when it deter-
mines waiver to be in the County’s best interests. Metro
Dade, 552 ¥.Supp. at 927-28. We agree with this con-
clusion and discuss the relevant Charter provisions more
completely infra Slip op. at 1406-1407, at —-—.
Plaintiff-appellees also argue that the challenged poli-
cies contravene the Florida Constitution’s dve process
and equal protection guarantees. The Florida courts
have held that these provisions confer the same protec-
tion as their federal counterparts. See Florida Canners
Association v. Department of Citrus, 371 So.2d 503, 513
(Fla.2d Dist.Ct.App.1979), aff'd, 406 So.2d 1079 (Fla.
1981); Florida Real Estate Commission v. McGregor,
336 So.2d 1156 (Fla.1976). Determination of this pend-
ent claim, therefore, is necessarily dependent upon the
disposition of the federal constitutional issue.
7a
III.
The United States Supreme Court first directly con-
fronted the constitutionality of affirmative action plans in
Regents of the University of California v. Bakke, 438
U.S. 265, 98 S.Ct. 2738, 57 L.Ed.2d 750 (1978). Bakke
challenged an admissions program instituted by the Uni-
versity of California at Davis Medical School, whereby
sixteen of the one hundred available places in the enter-
ing class were set aside solely for minority applicants.
He contended that the program violated both Title VI of
the Civil Rights Act of 1964 and the Equal Protection
Clause of the Fourteenth Amendment.
No clear consensus emerged from the Court’s decision.
Five justices held that the strict racial quota was invalic ,
but only Justice Powell, utilizing a strict scrutiny stand-
arc of review, reached the decision on constitutional
grounds. Justice Stevens, joined by the Chief Justice and
Justices Stewart and Rehnquist, concurred in holding the
program invalid, but did so on the basis of Title VI, not
deciding the constitutional issue. Justices Brennan,
White, Marshall and Blackmun, on the other hand, agreed
with Justice Powell that Title VI was implicated only if
the Equal Protection Clause was also violated, but, rely-
ing on an intermediate level of scrutiny, would have up-
held the program’s validity as substantial related to an
important governmental interest.
The Court next addressed the issue in the context of a
congressional affirmative action program for federal
funding of public works projects. Fullilove v. Klutznick,
448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980).
The Fullilove Court upheld a statute that required local
governments receiving funds under a federal public
works program to use 10% of the funds for the procure-
ment of services or supplies from statutorily defined
minority owned and controlled businesses. Because Fulli-
love addresses the equal protection issue in the context of
government construction contracts and funding, it is the
8a
most relevant case to our constitutional inquiry. See
Ohio Contractors Ass’n v. Keip, 718 F.2d 167, 170 (6th
Cir. 1983).
As in Bakke, the Court in Fullilove did not produce a
majority opinion, with three different views emerging
from those Justices voting to uphold the statute. Chief
Justice Burger’s opinion, in which Justices Powell and
White concurred,’ declined to adopt either a strict scru-
tiny or intermediate scrutiny standard. Instead of artic-
ulating a broad rule of law, the Chief Justice’s opinion
concentrated on “the context presented” in determining
whether the statute’s objective was within Congress’
power and, if so, whether the means used was “narrowly
tailored to the achievement of [Congress’] goal.” 448
U.S. at 473, 480, 100 S.Ct. at 2772, 2775. The Chief
Justice also broadly outlined those aspects that a review-
ing court should consider when evaluating such pro-
grams:
For its part, the Congress must proceed only with
programs narrowly tailored to achieve its objectives,
subject to continuing evaluation and reassessment;
administration of the programs must be vigilant and
flexible; and, when such a program comes under
judicial review, courts must be satisfied that the leg-
islative objectives and projected administration give
reasonable assurance that the program will function
within constitutional limitations.
448 U.S. at 490, 100 S.Ct. at 2871.
7 The district court referred to the Chief Justice’s opinion as the
“plurality opinion” in Fullilove. Metro Dade, 552 F.Supp. at 931.
Two justices also concurred in Justice Marshall’s opinion, however,
meaning that neither the Chief Justice nor Justice Marshall’s
opinion garnered the support of a plurality. Thus, to the extent
that the term “plurality opinion” connotes that an opinion com-
mands more support than other opinions in the case, neither Chief
Justice Burger nor Justice Marshall’s opinion qualifies.
9a
Justice Powell’s concurrence reiterated his views in
Bakke that strict scrutiny was the proper standard of
review. The strict scrutiny test would require a finding
that the racial classification was “a necessary means of
advancing a compelling governmental interest.” 448 U.S.
at 496, 100 S.Ct. at 2783. This approach requires both
specific findings of past discrimination and a choice of
remedies “equitable and reasonably necessary to the re-
dress of identified discrimination.” Jd. at 498, 510, 100
S.Ct. at 2785, 2791. Justice Powell also outlined five fac-
tors to consider in determining whether the strict scru-
tiny test is satisfied: (1) the efficacy of alternative rem-
edies; (2) the planned duration of the remedy; (3) the
relationship between the number of minority workers to
be employed and the percentage of minority group mem-
bers in the work force; (4) the availability of waiver
provisions; and (5) the effect of the remedy on third
parties. Id. at 510, 514, 100 S.Ct. at 2791, 2793.
Both Chief Justice Burger and Justice Powell’s opin-
ions stressed the fact that the statute in Fullilove was
passed by Congress and should therefore be judged with
deference to Congress’ broad powers:
Here we deal... not with the limited remedial
powers of a federal court, for example, but with the
broad remedial powers of Congress. It is funda-
rental that in no organ of government does there
repose a more comprehensive remedial power than in
the Congress, expressly charged by the Constitution
with competence and authority to enforce equal pro-
tection guarantees.
Id. at 488, 100 S.Ct. at 2777; see also id. at 515 n.14, 100
S. Ct. at 2794 n.14 (Poweil, J., concurring). Their em-
phasis on the fact that the Court was reviewing a Con-
gressional statute suggests that constitutionally accept-
able means of redessing past discrimination vary with
the powers of the government body enacting the legisla-
tion.
10a
Justice Marshall in his concurrence, joined by Justices
Brennan and Blackmun, reaffirmed his view in Bakke
that an intermediate standard of review was necessary,
requiring that the use of benign racial classifications be
“substantially related” to “an important and articulated”
government purpose. Jd. Justice Marshall believed that
such an approach would guard against possible misuse or
stigmatization while still allowing sufficient flexibility to
redress past discrimination.
In light of the diversity of views on the Supreme Court,
determining what “test” will eventually emerge from the
Court is highly speculative. The district court, based
upon a review of federal court cases following Bakke and
Fullilove, concluded that strict scrutiny was the proper
standard. We rely instead on what we perceive as the
common concerns to the various views expressed in Bakke
and Fullilove: (1) that the governmental body have the
authority to pass such legislation; (2) that adequate
findings have been made to ensure that the governmental
body is remedying the present effects of past discrimi-
nation rather than advancing one racial or ethnic group’s
interests over another; and (3) that the use of such clas-
sification extend no further than the established need of
remedying the effects of past discrimination. Legislation
employing benign racial preferences, therefore, must in-
corporate sufficient safeguards to allow a reviewing court
to conclude that the program will be neither utilized to an
extent nor continued in duration beyond the point needed
to redress the effects of the past discrimination.
This approach is most closely akin to that set out in
Chief Justice Burger’s opinion in Fullilove. Without
adopting a formal “test,” it attempts to balance the legi-
timate objective of redressing past discrimination with
the concerns that the chosen means be “narrowly
tailored” to the legislative goals so as to not unfairly
impinge upon the rights of third parties. Furthermore,
the program must be structured in such a way that it is
lla
subject to reassessment and will be implemented in a
manner that is flexible enough to account for changing
needs and circumstances. 448 U.S. at 490, 100 S.Ct. at
2780.
IV.
A.
Pursuant to the above approach, we must first de-
termine whether Metropolitan Dade County was a
competent legislative body to adopt remedial measures
designed to eliminate past discrimination. In Fullilove,
both Chief Justice Burger and Justice Powell empha-
sized the “unique” role accorded Congress in dealing with
past discrimination, 448 U.S. at 483, 500, 100 S.Ct. at
2777, 2786. We agree with the Sixth Circuit, however,
that the references in Fullilove to Congress’ power were
not intended to imply that governmental bodies other
than Congress may not act to remedy past discrimina-
tion, but were only emphasizing the “unequaled” power
of Congress to act under its specific powers granted by
the Fourteenth Amendment. Ohio Contractors, 713 F.2d
at 172. Thus, although the scope of Congress’ power to
remedy past discrimination may be greater than that of
the states, state legislative bodies are not without au-
thority to ensure equal protection to persons within their
jurisdictions. Id.
Whether the Metropolitan Dade County Commission as
a political subdivision of the State of Florida had the
power to enact the ordinance is a question of state law.
Dade County operates pursuant to its Home Rule Charter,
which specifically grants the county the power to waive
competitive bidding when such waiver is in the county’s
best interests:
Contracts for public improvements and purchases of
supplies, materials, and services other than profes-
sional shall be made whenever practical on the basis
of specifications and competitive bids. Formal sealed
12a
bids shall be secured for all such contracts and pur-
chases when the transaction involves more than the
minimum amount established by the Board of County
Commissioners by ordinance. The transaction shall
be evidenced by written contract submitted and ap-
proved by the Board. The Board, upon written
recommendation of the Manager, may by resolution
adopted by two thirds vote of the members present,
waive competitive bidding when it finds this to be
in the best interest of the county.
Metropolitan Dade County, Fla., Home Rule Charter
§ 4.03(D) (as amended through October 5, 1978). When
this provision is coupled with the other broad powers
granted by the Home Charter, see Metro Dade, 552 F.
Supp. at 934, we agree with the district court’s conclu-
sion that the Commission was competent as a matter of
state law to make findings of past discrimination and to
enact remedial legislation. Jd. at 927, 934.
B.
Having found that the Commission had the authority
to enact the ordinance, we must now determine if the
Commission made adequate findings to ensure that the
county was acting to remedy the effects of past discrimi-
nation rather than advancing one group’s interests over
another based on a perceived need not founded in fact.
We agree with the district court that the Commission
made sufficient legislative findings to justify race-
conscious remedies.
The court found that the Commission’s actions were
based on “reliable, substantial information complied by
independent investigations.” Metro Dade, 552 F.Supp.
at 917 (Finding #17). These investigations revealed
that past discriminatory practices had impeded the de-
velopment of black businesses, resulting in an economic
disparity between blacks and other groups that had cre-
ated unrest in the black community. Id. at 916 (Finding
13a
#16). Moreover, the court found from the evidence
presented that although the present county government
had not engaged in discriminatory practices, there had
been “identified discrimination against Dade County
black contractors at some point prior to the county’s
present affirmative action program.” Jd. at 925-26 (Find-
ing #41) (emphasis in original). The Commission in
passing both Resolution No. R-1672-81 and Ordinance
No. 82-67 relied on the above legislative findings as the
premise for their actions, and these findings amply estab-
‘lish a governmental interest justifying the county’s
measures designed to remedy past discrimination. See
Ohio Contractors, 713 F.2d at 170-171.
C.
We must next consider whether the Dade County
ordinance facially incorporates sufficient safeguards to
ensure that it is narrowly tailored to its legitimate ob-
jective of redressing past discrimination. After a care-
ful review of the legislative provisions, we find that ade-
quate safeguards exist to uphold the ordinance’s consti-
tutionality.
Before a set-aside or subcontractor goal is approved
for a county construction contract, it must pass through
three levels of administrative review. First, the county
department must suggest through the County Manager
which, if any, race-conscious measures are appropriate
for the project being reviewed. Regs. 1.02 & 2.03. The
suggestions are made on the basis of the availability of
black contractors and the goals of the department. Reg.
1.02. Suggested actions may include the use of a set-
aside, subcontractor goals, bid credits or no race-conscious
measures at all. Reg. 1.04.
Next, the department’s suggestions are reviewed by a
three member Contract Review Committee. Regs. 2.01 &
2.02. The Committee formulates a recommendation on
the advisability of the inclusion of race-conscious meas-
14a
ures for the construction contract in question prior to the
preparation of contract specifications. Regs. 2.04 & 2.06.
This recommendation is then forwarded to the Board of
County Commissioners. Reg. 2.06.
Finally, the Board conducts its review of the pro-
posed measures, acting upon the Committee’s recommen-
dation and giving advice on how to proceed. Reg. 2.06.
In the case of a set-aside, the Board must make findings
that the set-aside would be in the best interests of the
county before waiving formal bid procedures. Regs. 2.07
& 5.03.
The ordinance and regulations also set out criteria to
guide the reviewing bodies as to whether set-asides and
goals are appropriate. A set-aside may be used only
upon findings that at least three certified black prime
contractors are available and that the set-aside would be
in the best interests of the county. Ord. 10-38(d) (2) ;
Reg. 5.01. Subcontractor goals must be based upon esti-
mates of the project’s subcontracting opportunities and
the availability of black subcontractors with the neces-
sary expertise. Ord. 10-38(d) (1) ; Reg. 4.02.
In addition to the three-tiered review of each con-
struction contract where race-conscious remedies are pro-
posed, the entire program is also subject to periodic
review and assessment. The Board must annually re-
assess the continuing desirability and viability of the
program. Ord. § 10-38(e). This reassessment is in part
based upon an annual report by the County Manager
reporting the percentage of the value of county construc-
tion contracts awarded that year to black contractors and
subcontractors. Ord. § 10-88(e). The County Manager is
also charged with the duty of continually monitoring the
program’s use and periodically reporting its findings.
Resol. § 3.
We find that these extensive review provisions provide
adequate assurances that the county’s program will not
15a
be used to an extent nor continue in duration beyond
the point necessary to redress the effects of past dis-
crimination. Although no definite expiration date is speci-
fied, the Board is obligated to review the program
annually to assess whether it should be continued or
modified, and such a review adequately guarantees that
the program will not be continued beyond its demon-
strated need. See Ohio Contractors, 713 F.2d at 175 (no
given expiration date required).* Likewise, although no
target figure for the program’s overall use is specified,
adequate review mechanisms exist to ensure that the
program will not be misused. Each contract where set-
asides or goals are to be used must be approved at three
different levels of the county government, and the entire
program is subject to periodic monitoring and reassess-
ment by the Board and County Manager.
Our conclusions on the adequacy of the program’s safe-
guards are premised on the understanding that the re-
view process, both for individual contracts and the entire
program, will be conducted in a thorough and substantive
manner. If the process is carried out in a conclusory
fashion or extended beyond its legitimate purpose of
redressing the effects of past discrimination, the plaintiffs
may of course renew their challenge to the constitution-
8 A durational limit is one of the five factors that Justice Powell
identified for assessing a program’s constitutionality. 488 U.S. at
510, 512, 100 S.Ct. at 2791, 2792 (Powell, J. concurring). In Ohio
Contractors, supra, the Sixth Circuit held that the lack of a dura-
tional limit was not “fatal” in light of the Ohio legislature’s recog-
nition of the need for future reassessment and reevaluation. 713
F.2d at 175. The dissent argued that the lack of a durational limit
combined with what it believed was a lack of sufficient findings
of past discrimination led to the statute “present[ing] a real
danger of fostering a dependency upon favoritism, which is inimical
... to the commands of the Equal Protection Clause.” 713 F.2d at
176 (Engel, T., dissenting). Here, we have adequate legislative
findings, supra, which ensure that Dade County is not merely
“fostering a dependency upon favoritism,” as well as an annual
reassessment by the Board of the continued need for the program.
16a
ality of the county’s program. We decline to hold the
ordinance facially unconstitutional, however, merely on
the speculation that the county will not vigorously under-
take implemenation of the review procedure.
¥.
Having found that the ordinance is constitutionally
acceptable, we must still determine whether the program
was constitutionally applied to the Earlington Heights
Station. After reviewing the record, we conclude that
the set-aside and subcontractor goal were properly adopted
by the county and were appropriately measures for the
project.
After the formal bidding on the Earlington Heights
contract was rejected,® the County Manager recommended
that the contract be subjected to the newly enacted pro-
cedures of Ordinance No. 82-67. Metro Dade, 552 F.Supp.
at 923. The Contract Review Committee, in accordance
with the requisite administrative procedures, determined
that a sufficient number of county black contractors were
available with the requisite capability of serving as the
prime contractor and recommended that bidding be set-
aside. Id. The Committee also recommended a fifty per-
cent subcontractor goal based on the availability of quali-
fied black subcontractors and the requirements of the
project. Id.
The Commission adopted the Commitiee’s recommenda-
tions, finding:
as a matter of fact that the use of both a set-aside
and a goal on this contract will contribute towards
eliminating the marked statistical disparity .. .
between the percentage of overall Black business
participation in County contracts and the percentage
of Dade County’s population which is Black.
® The bids were rejected because they were substantially higher
than the County’s estimates and because the amount of the bids
had become public. Supra Slip op. at 1403 at ——.
ee - —
17a
Resolution No. R-1350-82. In accordance with the ordi-
nance’s regulations, the Commission formally found the
set-aside to be in the best interests of the county and
waived formal bidding. The Commission also incorpo-
rated the prior legislative findings of Resolution R-1672-
81, which had found both evidence of past discrimina-
tion and a need for fostering increased participation by
the black business community.
The set-aside and subcontractor goal for the Earling-
ton Heights Station were thus properly adopted by the
Commission pursuant to the ordinance and its regula-
tions.*° The Contract Committee reviewed the availability
of qualified black contractors and the demands of the
project before making its recommendations, and the
Board found the recommendations to be necessary to
eliminating the vestiges of past discrimination in the
awarding of county construction contracts.
Moreover, we find that the 100% set-aside and 50%
subcontractor goal were appropriate, narrowly tailored
measures to achieve the legislative objective. In so con-
cluding, we find that the district court erred on several
grounds in striking down the set-aside.
First, when discussing the set-aside’s relationship to
the percentage of black contractors and its impact on
third parties," the district court rejected the county’s
10 The measures, of course, were not proposed prior to the com-
pletion of contract specifications (Regulation 1.02), as the contract
had already been bid upon. We do not find, however, that in the
context of the proceedings concerning the Earlington Heights Sta-
tion that this omission in any way affected the validity of the set-
aside or goal.
11 We rely on Justice Powell’s indicia for this part of our dis-
cussion not because we are adopting the “strict scrutiny” test, but
because the district court relied upon them in its opinion. More-
over, these factors serve as a helpful guide in determining whether
a statute satisfies the Equal Protection Clause, regardless of which
standard of review is used.
18a
argument that, viewed within the whole context of county
procurement, the set-aside constituted only .6% of all
county contracts over a ten year period: “It is the pro-
priety of the 100% set-aside of the Earlington Heights
Station that is for the determination of the Court. Noth-
ing else.” 552 F.Supp. at 937. Yet, when reviewing the
50% subcontractor goal, the court in essence undertook
a “totality” review: “The record shows that this contract
is but one out of twenty. It is located in the Black com-
munity and is a visible symbol of Black participation in
the Metrorail system and county construction contracting
in general.” Jd. at 941.
Although we do not agree that a ten year time frame
is the proper reference point, a “totality” review is an
appropriate means of ascertaining whether a program or
its application is narrowly drawn.” Here, the estimated
cost of approximately $6 million for the Earlington
Heights Station, id. at 923, constitutes less than one per-
cent of the county’s annual expenditures of $620 million
on contracts, id. at 917, and just over one percent of the
approximately $581 million spent up to September 30,
1982 on the Dade County Metro rail system itself,’* id.
Considering that blacks constitute over seventeen percent
12 All three opinions in Fullilove voting to uphold the statute
compared the 10% figure in the statute to the total expenditures
by the United States government on construction contracts. 448
U.S. 484 n. 72, 100 S.Ct. 2778 n. 72 (Burger, C.J.) ; 448 U.S. 514-
515, 100 S.Ct. 2793 (Powell, J. concurring) ; 448 U.S. 521, 100 S.Ct.
2796 (Marshall, J. concurring). See also Ohio Contractors, 713
F.2d at 173. The Court’s reliance on all funds expended on con-
struction work in the United States as its reference point is an even
broader one than we rely upon here.
13 The total cost of the Metrorail system is estimated at approxi-
mately one billion dollars, 552 F.Supp. at 917 (Finding #20), of
which the Earlington Heights Station costs would constitute only
6%.
19a
of Dade County’s population, yet less than one percent of
Dade county contractors are black, id. at 926, the effect
of the set-aside and the subcontractor goal is not dis-
proportionate to either the number of blacks and black
contractors residing in the county or to the goal of in-
creasing black business participation in order to redress
past discrimination.* Likewise, considering the small
percentage of overall construction contracts affected, we
do not find that the set-aside impacts unfairly on third
parties.° Cf. Fullilove, 448 U.S. 484 n. 72, 100 S.Ct. at
2778 n. 72; 448 U.S. at 514-15, 100 S.Ct. at 2793 (Powell,
J., concurring).
Seeond, the district court used an abuse of discretion
standard to determine whether the 50% figure was rea-
sonable, but not for the 100% set aside. 542 F.Supp. at
936, 939. We find this inconsistent, as the effect of the
50% figure, although designated a “goals” provision, is
to set-aside 50% of the contract’s value for black con-
tractors. We also question the use of an abuse of discre-
tion standard in judging whether a percentage goal or
set-aside is reasonable. Although Justice Powell did speak
in his Fullilove concurrence of the set-aside percentage
being within Congress’ “discretion,” he also noted that a
higher level of scrutiny may be necessary for legislation
passed by governmental bodies other than Congress. 448
U.S. at 515 n. 14, 100 S.Ct. at 2794 n. 14. We rely on
the higher review standard of whether the percentages
chosen, either as a set-aside or goal, are narrowly tailored
to the legislative objective; we find that they are nar-
rowly tailored here.
14 As of August 31, 1982, only 7% of the Metrorail construction
was being performed by black contractors and subcontractors. 552
F.Supp. at 927 (Finding #21).
15 We also note, as did the Sixth Circuit, that non-minority con-
tractors may participate by cwning up to 49% of a minority estab-
lishment. See, supra note 1; Ohio Contractors, 713 F.2d at 174.
20a
Finally, we cannot agree with the district court that
the set-aside was impermissible in light of alternative
remedies or because it lacked an adequate waiver provi-
sion. The county was not required to choose the least
restrictive remedy available, see Fullilove, 448 U.S. at
508, 100 S.Ct. at 2790 (Powell, J., concurring), and, as
discussed above, the set-aside was chosen only after care-
ful consideration of alternative methods and a formal
finding by the Board that the set-aside was necessary in
this case to redress the effects of past discrimination.
Similarly, although the ordinance lacks a formal waiver
provision, the set-aside was not approved until after the
county had determined both that it would be in its best
interests and that enough black contractors were avail-
able. These determinations adequately provided the same
safeguard as a formal waiver provision, which would
protect against the potentially unfair effect “if [the set-
aside] were applied rigidly in areas where minority group
members constitute a small percentage of the popula-
tion.” Fullilove, 448 U.S. at 514, 100 S.Ct. at 2793
(Powell, J., concurring).
Vi.
This case has raised one of the most troublesome ques-
tions in the law: how to balance the legitimate goal of
redressing past discrimination with concerns that re-
medial legislation will unfairly infringe on the rights of
third parties. Here, we find that Metropolitan Dade
County has kept within the restrictions of the Equal
Protection Clause in enacting the challenged ordinance,
and thus uphold its constitutionality both facially and as
applied to the Earlington Heights Station.
The district court’s judgment is REVERSED IN
PART and AFFIRMED IN PART.
2la
APPENDIX
Resolution No. R-1672-81
WHEREAS, it has consistently been the policy of this
Board to foster economic growth and business opportuni-
ties for its population and ty promote the development of
local businesses; and
WHEREAS, this Board believes that the favorable
economic status and future growth prospects of Dade
County are integrally linked to the economic and social
conditions of the County’s Black communities, residents
and businesses; and
WHEREAS, this Board established the Black Business
Participation .Task Foree and charged that Task Force
with, among other things, investigating and assessing
the present extent of Black business activity within the
County generally and specifically in relation to doing
business with the County; and
WHEREAS, this Board hereby adopts the findings and
conclusions of the Task Force; and
WHEREAS, that Task Force found a statistically sig-
nificant disparity between the County’s Black population
and both the number of Black businesses within the
County and those receiving County contracts; and
WHEREAS, this finding of the Task Force that Blacks
have not proportionately shared in Dade County’s eco-
nomic development is in accordance with the findings and
conclusions set forth in Black Owned Businesses in Metro-
politan Miami, a Statistical Analysis of U.S. Census
Data, prepared by Tony E. Crapp, Sr., Director, Business
Development. Division, Department of Trade and Com-
merce Development, City of Miami (December, 1980) ;
An Economic Adjustment Plan for the Civil Disturbance
Areas of the City of Miami and Dade County, prepared
by Janus Associates (May, 1981) ; and the Report of the
222
Governor’s Dade County Citizens Committee (Octcber
80, 1980) ; copies of which reports are appended hereto,
and the findings and conclusions of which are hereby
adopted by this Board; and
WHEREAS, these reports have found that the gross
economic disparity between the Black community and the
other communities in Dade County has greatly exacer-
bated the frustrations of the Black community, which
frustrations resulted in the May, 1980 riots and loom as
sources of continuing racial and ethnic tensions; and
WHEREAS, this Board recognizes the reality that
past discriminatory practices have, to some degree, ad-
versely affected our present economic system and have
impaired the competitive position of businesses owned
and controiled by Blacks so as to result in this dispro-
portionately small amount of Black businesses, and
WHEREAS, the causes of this disparity are perceived
by this Board as involving the long standing existence
and maintenance of barriers impairing access by Black
enterprises to contracting opportunities and not as relat-
ing to the lack of capable and qualified Black enterprises
ready and willing to work; and
WHEREAS, Dade County greatly impacts the local
economy and business development through its spending
of revenue for various County projects and other needs;
and
WHEREAS, Dade County has a compelling interest in
stimulating the Black business community, a sector of
the community sorely in need of economic stimulus but
which, on the basis of past experience, is not expected to
benefit significantly in the absence of specific measures
to increase its participation in County business; and
WHEREAS, this County has a compelling interest in
promoting a sense of economic equality for all residents
of the County; and
23a,
WHEREAS, this Board believes that in order to effec-
tively combat the unemployment and lack of economic
participation of the Black community, the Black popula-
tion must be provided with the opportunity of owning
and developing their own businesses,
NOW, THEREFORE, BE IT RESOLVED BY THE
BOARD QF COUNTY COMMISSIONERS OF DADE
COUNTY, FLORIDA:
Section 1. This Board hereby advupts the policy of de
veloping programs and measures to alleviate the problem
of lack of participation of Blacks in the County’s eco-
nomic life and to stimulate the local Black economy, in-
cluding specific race conscious measures.
Section 2. Any program or procedure established pur-
suant to Section 1 above, shall continue until its objec-
tives are met and must maintain sufficient flexibility to
be able to achieve its purpose while still remaining viable
in terms of the needs of the County to transact its
business.
Section 3. The County Manager shall monitor such
programs and present periodic reports to the Board as to
their efficacy and viability.
ORDINANCE NO. 82-67:
WHEREAS, this Board has previously mace the legis-
lative finding in Resolution No. R-1672-81, adopted No-
vember 3, 1981, that Blacks have not proportionately
shared in Dade County’s economic development and has
initiated a policy to promote increased participation of
Black-owned businesses in County contracts; and
WHEREAS, such findings and the bases therefor as
contained in said Resolution No. R-1672-81, a copy of
which is attached hereto, are hereby adopted as the
legislative findings on which this Ordinance is based; and
24a
WHEREAS, the above findings are in accordance with
the findings and conclusions of the June 1982 report of
the United States Commission on Civil Rights entitled,
“Confronting Racial Isolation in Miami’, a copy of which
is appended hereto; and
WHEREAS, the government in Metropolitan Dade
County greatly impacts the local economy and business
development through its spending of revenue for various
County projects and other needs; and
WHEREAS, Dade County has a compelling interest in
stimulating the Black business community, a sector of
the County sorely in need of economic stimulus but which,
on the basis of past experience, is not expected to benefit
significantly in the absence of specific race-conscious
measures to increase its participation in County con-
tracts,
NOW, THEREFORE, BE IT ORDAINED BY THE
BOARD OF COUNTY COMMISSIONERS OF DADE
COUNTY, FLORIDA:
Section 1. Article II of Chapter 10 of the Code of
Metropolitan Dade County, Florida, is amended by add-
ing the following new section thereto:
See. 10-38. Procedure to increase participation of
Black contractors and subcontractors in county contracts.
(a) The foregoing recitations are hereby incorpo-
rated and adopted herein and made a part of this
Ordinance.
(b) Except where federal or state law or regulations
mandate to the contrary, the provisions of this Sec-
tion shall be applicable to all construction contracts
funded in whole or in part by county funds.
(c) (1) “Black contractor and subcontractor” means
a contracting or subcontracting business entity which
is owned and controlled by one or more Blacks and
has established a place of business in Dade County.
25a
(2) “Owned and controlled” means a business
which is at least 51 percentum owned by one or more
Blacks, or, in the case of a publicly-cwned business,
at least 51 percentum of the stock of which is owned
by one or more Blacks; and whose management and
daily business operations are controlled by one or
more such individuals.
(3) “Black” means a person who is a citizen or
lawful permanent resident of the United States and
who has origins in any of the Black racial groups of
Africa.
(d) The County Manager shall establish an ad-
ministrative procedure for the review of each pro-
posed County construction contract to determine
whether the inclusion of race-conscious measures in
the bid specifications will foster participation of
qualified Black contractors and subcontractors in the
contract work. Such race-conscious measures may
include goals for Black contractor and subcontractor
participation and set-asides.
(1) Goals. When utilized, goals shall be based on
estimates made prior to bid advertisement of the
quantity and type of subcontracting opportunities
provided by the project to be constructed and on the
availability and capability of Black contractors and
subcontractors to do such work. When goals are
utilized, the invitation for bid and bid documents
shall require the apparent lower and qualified bidder
prior to bid award to meet the goal or demonstrate
that he made every reasonable effort to meet the goal
and notwithstanding such effort were unable to do
so. In the alternative, the bid documents may re-
quire such demonstration regarding the goal or ef-
forts to meet it to be included by all bidders as part
of their bid submission. The steps required to demon-
strate every reasonable effort shall be specified in
the invitation for bid and the bid documents.
26a
(2) Set-asides. A set-aside is the designation of
a given contract for competition solely among Black
contractors. Set-asides may only be utilized where
prior to invitation for bid, it is determined that
there are sufficient licensed Black contractors to
afford effective competition for the contract. In each
contract where set-asides are recommended, staff
shall submit its recommendation and the basis there-
for to the Board for its initial review and determi-
nation whether waiver of competitive bidding for
such contract is in the best interest of the County.”
(e) The County Manager shall annually report to
the Board on the total dollar amount of County con-
struction contracts awarded that year and the per-
centage thereof to be performed by Black contractors
and subcontractors. At such time, the Board shall
determine whether to continue in effect the adminis-
trative procedure for utilization of race-conscious
measures authorized by this Ordinance.
Section 2. Section 10-34 of the Code of Metropolitan
Dade County, Florida, is hereby amended as follows:
Sec. 10-34. Listing of subcontractors not required;
exceptions.
Except for contracts for procurement or construc-
tion of all or any part of stage 1 of the rapid transit
system, construction contracts where race-conscious
measures have been included in the bid specifica-
tions to foster participation of Black contractors or
subcontractors, or where federal or state law or
regulations mandate to the contrary, no prime con-
tractor submitting a bid for a project for which bids
have been solicited by the legal entities to which this
article applies shall be required to list thereon the
names of any subcontractors it desires to be em-
ployed in connection with the subject project.
Section 3. Section 25A-4 of the Code of Metropolitan
Dade County, Florida is hereby amended by adding the
27a
following paragraph at the end of subparagraph (b) of
said section:
For all construction contracts, the trust shall comply
with the provisions of Section 10-38 of the County
Code and the administrative procedures adopted
pursuant to said section.
Section 4. Section 32A-1 of the Code of Metropolitan
Dade County, Florida, is hereby amended by adding the
following after the last sentence of said section:
For all construction contracts, the authority shall
comply with the provisions of Section 10-38 of the
County Code and the administrative procedures
adopted pursuant to said section.
Section 5. If any section, subsection, sentence, clause
or provision of this ordinance is held invalid, the re-
mainder of this ordinance shall not be affected by such
invalidity.
Section 6. It is the intention of the Board of County
Commissioners, and it is hereby ordained that the pro-
visions of this ordinance shall become and be made a part
of the Code of Metropolitan Dade County, Florida. The
sections of this ordinance may be renumbered or re-
lettered to accomplish such intention, and the word “ordi-
nance” may be changed to “section”, “article”, or other
appropriate word.
Section 7. This ordinance shall become effective ten
(10) days after the date of its enactment.
REGULATIONS GOVERNING BID PROCEDURES
UNDER ORDINANCE NO. 82-67:
1. DEPARTMENT RESPONSIBILITIES
1.01 All departments (including the Public Health Trust
and the Miami-Dade Water and Sewer Authority with
funds budgeted for capital improvement projects are to
28a
develop a record keeping system which will include the
dollar value of all construction contracts anticipated, a
goal for Black participation for the fiscal year, and the
dollar value of contracts awarded by minority classifica-
tion.
1.02 Prior to the completion of contract specifications
for each capital project, each department, in conjunction
with the consultant project manager, if engaged, will
analyze the trades certifications required for each proj-
ect. After considering the number and types of Black-
owned firms likely to be available to participate in the
contract, the goals of the department, and a suggestion as
to the type of race-conscious measures which could be
provided within the contract work are to be developed.
1.03 Suggested actions shall be for (a) establishment of
subcontractor goals, (b) set-asides for contractors, (c)
bid credit and (d) no race-conscious requirements.
1.04 Each project is to be submitted to a Contract Re-
view Committee for action and recommendation to the
Board of County Commissioners.
2. CONTRACT REVIEW COMMITTEE
2.01 A three (3) member Contract Review Committee
comprised of an Assistant County Manager, the Capital
Improvements Coordinator and the Affirmative Action
Coordinator is created. Staff to the Committee will be
provided by a Compliance Office included within the
Affirmative Action Division.
2.02 The Committee is to meet monthly or sooner, as
necessary, for the purpose of reviewing suggestions for
the inclusion of race-conscious measures within contract
specifications of each construction project.
2.03 Suggested race-conscious actions are to originate
by the County project manager for the construction proj-
ect and the consultant project manager, if commissioner.
29a
2.04 Projects are to be submitted to the Contract Re-
view Committee prior to preparation of the contract
specifications.
2.05 The Contract Review Committee, after considering
the number of anticipated subcontractors likely to be
employed on the job, will recommend at what point the
subcontractors will be listed.
2.06 Following review by the Contract Review Com-
mittee, a recommendation is to be submitted to the Board
of County Commissioners for action, together with the
request for advisement.
2.07 Recommendations for set-aside projects require a
waiver of formal competitive bids by the Board of County
Commissioners.
3. CERTIFICATION
3.01 All firms participating in the Black Contractors
and Subcontractors Program will be certified as Black
firms.
3.02 Certification records will be maintained by the
Contract Compliance Office within the Dade County Af-
firmative Action Division.
3.03 Assistance in the certification process will be pro-
vided by authorized community-based organizations under
contract with Dade County.
3.04 Applications for certification will be on standard
forms and will include, but will not be limited to, pri-
mary business location, evidence of ownership, operation,
experience, and the adequacy of the firms.
3.05 Appeals of denials of certification can be made to
the Contract Review Committee.
3.06 Certification of all firms will be updated annually.
3.07 Certification of each firm shall be completed prior
to the award of any contract under the Black Contractors
Program.
30a
3.08 A concentrated, public advertising campaign by
trade certification area will be undertaken to encourage
certification.
4. SUBCONTRACTOR GOALS
4.01 Percentage goals for the dollar value of subcon-
tractor work are to be considered when the review of the
proposed contract indicates the greatest potential for
Black subcontractor participation.
4.02 Goals shall relate to the potential availability of
Black-owned firms in the required field of expertise.
4.03 Availability should include all Black-owned firms
with places of business [that] are within the Dade
County geographic area.
4.04 When goals are included with the contract of the
prime contractors, bidders shall use good faith efforts to
meet the goals.
4.05 Lack of good faith efforts will make the prime
contractor’s bid ineligible for award and not responsive.
4.06 A prime contractor may include the subpart of the
volume of value of a joint venture of a certified sub-
contractor towards the contract goal.
5. SET-ASIDES
5.01 Contracts for set-asides shall be considered in those
contracts when at least three (3) certified prime con-
tractors with the capabilities consistent with the contract
requirements exist.
5.02 A prime contractor can be under contract for only
one (1) set-aside contract at a time, and no more than
three (3) within any one (1) year period.
5.03 Prior to the advertising for set-aside contracts, the
Board of County Commissioners is to make findings as
3la
to the proposed set-aside contract in the best interest of
the County and waiving formal bid procedures.
5.04 Bid procedures limiting competitive bids to Black
certified firms will be implemented.
6. BID CREDIT
6.01 Implementation of bid credit will not be done at
this time.
RESOLUTION NO R-1350-82:
WHEREAS, this Board on November 3, 1981, adopted
Resolution No. R-1672-81, finding that Blacks have not
proportionately shared in Dade County’s economic devel-
opment and setting forth a policy to promote increased
Black business participation in County business; and
WHEREAS, this Board on July 20, 1982, enacted
Ordinance No. 82-67 which requires review of proposed
county construction contracts to determine whether the
addition to bid specifications of race conscious measures
will foster participation of Black contractors and sub-
contractors in the contract work; and
WHEREAS, pursuant thereto the County Manager has
created a contract review committee to review each con-
struction contract prior to advertisement and to make
recommendations thereon to this Board; and
WHEREAS, the committee has reviewed the Metro-
rail Earlington Heights Station contract together with
the data and suggestions svbmitted by the Dade County
Transportation Administration ; and
WHEREAS, the committee has determined that there
are sufficient licensed Black general contractors to afford
effective competition for the station contract were the
contract set aside for competition solely among Black
contractors, and based thereon has recommended use of a
set-aside on this contract; and
32a
WHEREAS, in addition thereto, ise committee has
estimated the quantity and type of subcontracting oppor-
tunities provided by the contract and the availability and
capability of Black contractors and subcontractors to do
such work and based thereon has recommended a goal of
fifty percent (50%) of the dollar value of the contract to
be subcontracted to Black contractors; and
WHEREAS, Earlington Heights is the last of the 20
Metrorail stations to be bid and is located within the
Black community of Dade County; and
WHEREAS, increased participation of Black contrac-
tors and subcontractors on this contract will have a
substantial impact in the community to be served by this
station both in terms of the <redibility of the County’s
efforts to involve Black-owned businesses in the economic
growth of this County and in terms of greater employ-
ment opportunities for members of such community; and
WHEREAS, this Board specifically finds and deter-
mines as a matter of fact that the use of both a set aside
and a goal on this contract will contribute towards elimi-
nating the marked statistical disparity, noted in this
Board’s prior legislation, between the percentage of over-
all Black business participation in County contracts and
the percentage of Dade County’s population which is
Black; and
WHEREAS, this Board further finds that the use of
both a set aside and a goal will help to alleviate un-
employment and stimulate the Black business community,
a sector of Dade County’s economy which is sorely in
need of economic stimulus, but which on the basis of
past experience cannot be expected to receive any signifi-
cant amount of the public funds to be expended on this
contract in the absence of such race conscious measures,
NOW, THEREFORE, BE IT RESOLVED BY THE
BOARD OF COUNTY COMMISSIONERS OF DADE
COUNTY, FLORIDA, that:
33a
1. Resolution No. 4-1672-81 [sic] and Ordinance No.
82-67, together with the findings contained therein, and
the documents and reports attached thereto, and the fore-
going recitations are hereby incorporated and adopted as
the legislative findings of this Board and are made a part
of this resolution.
2. The recommendations of the contract review com-
mittee are accepted by this Board.
3. This Board finds that it is in the best interests of
Dade County to waive formal competitive bidding pro-
cedures for the Earlington Heights Metrorail Station
contract, and authorizes the set aside of such contract
for competition solely among Black contractors, formal
bidding being waived in this instance pursuant to Section
4.03(D) of the Home Rule Charter by two-thirds (2%
vote of the Board members present.
4. In addition to the set aside, a goal of 50% of the
dollar value of the contract work for Black subcontractors
is adopted on this project.
34a
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
OFFICE OF THE CLERK
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
March 22, 1984
Spencer D. Mercer In Replying, Give Number
Clerk of Case and Names of Parties
TO ALL PARTIES BELOW:
No. 83-5001
SOUTH FLORIDA CHAPTER VS. METROPOLITAN DADE
COUNTY
D.C. Docket No. 82-2427-CIV-J WK
This is to advise that an order has this day been entered
denying the petition() for rehearing.
[] The Court having been polled at the request of
the members of the Court and a majority of the
Circuit Judges who are in regular active service
not having voted in favor of it (Rule 35, Fed-
eral Rules of Appellate Procedure: Circuit Rule
26), the petition() for rehearing en banc has
also been denied.
No member of the panel nor Judge in regular
active service on the Court having requested that
the Court be polled on rehearing en bane (Rule
35, Federal Rules of Appellate Procedure: Elev-
enth Circuit Rule 26), the petition() for rehear-
ing en banc has also been denied.
~~ oe
ay eee m
35a
See Rule 41, F.R.A.P., and Eleventh Circuit Rule 27 for
issuance and stay of the mandate.
Very truly yours,
SPENCER D. MERCER
Clerk
By /s/ Karen B. Sinyard
Deputy Clerk
Ene: Court Order
ee: Rebert A. Ginsburg
Gordon Dean Rogers
David V. Kornreich
John W. Caven, Jr.
Stephen J. Parker
G. Bruckwel Heylin
Robert A. Cuevas, Jr.
36a
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 83-5001
SOUTH FLORIDA CHAPTER OF THE ASSOCIATED GENERAL
CONTRACTORS OF AMERICA, INC., et al.,
Plaintiffs-A ppellees,
Cross-Appellants,
versus
METROPOLITAN DADE COUNTY, FLORIDA, et al.,
Defendants-A ppellants,
Cross-Appellees.
Appeal from the United States District Court for the
Southern District of Florida
ON PETITION FOR REHEARING AND SUGGES-
TION FOR REHEARING EN BANC
(Opinion January 27, 11 Cir., 198-, —— F.2d ——).
[Filed Mar. 22, 1984]
Before KRAVITCH/HENDERSON/ ANDERSON, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and no mem-
ber of this panel nor other Judge in regular active service
on the Court having requested that the Court be polled
on rehearing en bane (Rule 35, Federal Rules of Appel-
late Procedure; Eleventh Circuit Rule 26), the Sugges-
tion for Rehearing En Banc is DENIED.
{] The Petition for Rehearing is DENIED and the Court
having been polled at the request of one of the members
of the Court and a majority of the Circuit Judges who
are in regular active service not having voted in favor
of it (Rule 35, Federal Rules of Appellate Procedure;
87a
Eleventh Circuit Rule 26), the Suggestion for Rehearing
En Banc is also DENIED.
{[] A member of the Court in active service having re-
quested a poll on the reconsideration of this cause en
bane, and a majority of the judges in active service
not having voted in favor of it, rehearing en banc is
DENIED.
ENTERED FOR THE COURT:
/s/ Phyllis Kravitech
United States Circuit Judge
38a
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT
OFFICE OF THE CLERK
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
April 11, 1984
Spencer D. Mercer In Replying, Give Number
Clerk of Case and Names of Parties
MEMORANDUM TO COUNSEL OR
PARTIES LISTED BELOW:
No. 83-5001
SOUTH FLORIDA CHAPTER vs.
METROPOLITAN DADE COUNTY
D.C. Docket No. 82-2427-CIV-5 WK
The following action has been taken in the above case:
—— AN EXTENSION OF TIME has been granted to
and including
—— for filing appellant’s/petitioner’s brief.
—— for filing appellee’s/respondent’s brief.
—— for filing reply brief.
—— for filing petition for rehearing.
—— It is specifically understood and agreed by the
movant for extension, that the document above
will be filed on or before this new date, and
further agreed that no additional extensions
will be requested by the movant.
—— Motion to consolidate granted.
—— Motion to supplement or correct the record granted.
89a
—— Motion for leave to file supplemental brief granted.
—— Motion for leave to file brief amicus curiae is
granted.
—— Joint motion as to time for filing briefs is granted.
XX Order enclosed has been entered.
SPENCER D. MERCER
Clerk
By: /s/ Karen B. Sinyard
Deputy Clerk
Enc: Court Order
ce: Robert A. Ginsburg
Gordon Dean Rogers
David V. Kornreich
John W. Caven, Jr.
Stephen J. Parker
G. Brockwel Heylin
40a
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 83-5001
SouTH FLORIDA CHAPTER OF THE ASSOCIATED
GENERAL CONTRACTORS OF AMERICA, INC., et al.,
Plaintiffs-A ppellees
Cross Appellants.
versus
METROPOLITAN DADE COUNTY, FLORIDA, et al.,
Defendants-A ppellants
Cross Appellees.
Appeal from the United States District Court for the
Southern District of Florida
[Filed Apr. 11, 1984]
ORDER:
(
) The motion of appellees/cross-appellants for
stay [_] recall and stay of the issuance of the man-
date pending petition for writ of certiorari is DE-
NIED.
(X ) The motion of appellees/cross-appellants for
stay {_] recall and stay of the issuance of the man-
date pending petition for writ of certiorari is
GRANTED to and including May 21, 1984, the
4la
stay to continue in force until the final disposition
of the case by the Supreme Court, provided that
within the period above mentioned there shall be
filed with the Clerk of this Court the certificate of
the Clerk of the Supreme Court that the certiorari
petition has been filed. The Clerk shall issue the
mandate upon the filing of a copy of an order of
the Supreme Court denying the writ, or upon the
expiration of the stay granted herein, unless the
above mentioned certificate shall be filed with the
Clerk of this Court within that time.
The motion of for a further
stay of the issuance of the mandate is GRANTED
to and including , under the same
conditions as set forth in the preceding paragraph.
IT IS ORDERED that the motion of
——— for a further stay of the issuance of the
mandate is DENIED.
/s/ Phyllis A. Kravitch
United States Circuit Judge
42a
APPENDIX B
UNITED STATES DISTRICT COURT
S.D. FLORIDA
No. 82-2427-Civ-J WK
SOUTH FLORIDA CHAPTER OF THE ASSSOCIATED
GENERAL CONTRACTORS OF AMERICA, IINC., et al.,
/ Plaintiffs,
fe .
/
/
METROPOLITAN DADE COUNTY, FLORIDA, et al.,
| Deffendants.
Dec. 16, 1982
David V. Kornreich and Gordon Dean Rogers, Miami,
Fla., for plaintiffs.
Robert A. Ginsburg and R. A. Cuevas, Jr., Miami,
Fla., for defendants.
Theodore Klein, Miami, Fla., for Thackcer Const. Co.
Leon E. Sharpe, Miami, Fla., for Alliied Contractors
Ass’n and Alfred Loyd & Sons, Ince.
MEMORANDUM OPINION CONTAINING FINDINGS
OF FACTS AND CONCLUSIONS ‘OF LAW
KEHOE, District Judge.
A
This is an action alleging, among otlher things, that
plaintiffs are being discriminated against because of their
race in violation of the Fourteenth Amendment to the
United States Constitution. The central issue for deter-
mination is important and fundamental:: how far can a
local government apply a race consciouss affirmative ac-
43a
tion plan before that plan violates a person’s constitu-
tionally guaranteed right to the equal protection of the
laws? Put another way, may a local government initiate
a race-conscious policy of favoring a disadvantaged mi-
nority group at the expense of members of a non-
minority group?
Plaintiffs are White construction contractors and sub-
contractors who have been adversely affected by Metro-
politan Dade County’s recently enacted race-conscious or-
dinance. This ordinance has two major features: a “set-
aside” provision that limits competition for certain desig-
nated county contracts exclusively among Black contrac-
tors; and a “goals” provision that sets a certain percent-
age dollar amount of a county contract to be subcon-
tracted to Black contractors.
For reasons fully explained in the body of this opinion,
it is the considered judgment of the Court: (a) that the
“set-aside” provision of the county’s race-conscious ordi-
nance conflicts with the equal protection clause of the
Fourteenth Amendment; and (b) that the “goals” provi-
sion falls within the ambit of county discretion and is
constitutionally permissible. Accordingly, plaintiffs are
entitled to a judgment declaring that the set-aside provi-
sion of the defendants’ race conscious policy is unconsti-
tutional, and a permanent injunction enjoining the de-
fendants from applying the set-aside to the contract that
is the subject of this action.
II.
Plaintiffs are non-profit corporations and trade asso-
ciations challenging certain ordinances, resolutions and
policies enacted by Metropolitan Dade County and man-
dating that minority set asides and goals be established
for selected county construction contracts to be bid and
awarded. The defendants are the county, its Board of
County Commissioners, the county manager and the
county transportation coordinator.
44a,
Plaintiffs filed their complaint seeking a declaratory
judgment and injunctive relief on November 12, 1982.
Jurisdiction over this cause was invoked pursuant to 28
U.S.C. § 1848 as an action seeking relief under 42 U.S.C.
§§ 1981 and 1983 (the civil rights acts) and 28 U.S.C.
§§ 2201 and 2202 (declaratory judgments). The Court’s
pendent jurisdiction was invoked over two related state
claims.
On November 15, 1982 plaintiffs filed their motion for
preliminary injunction, or in the alternative, motion for a
temporary restraining order, seeking to enjoin the county
from opening the bids submitted on the Earlington
Heights Metrorail Station project. Since these bids were
scheduled to be opened on November 17, 1982, the Court
held a hearing on the motion for a temporary restrain-
ing order on November 16, 1982. The defendants were
notified of this action and of the scheduled hearing, and
appeared in opposition to the motion. At the conclusion
of the hearing, after receiving testimony of witnesses
and argument of counsel, the Court announced that it
would issue a temporary restraining order against the
defendants. The following day a temporary restraining
order was issued restraining the defendants from open-
ing the bids for the Earlington Heights Metrorail Sta-
tion project, contract no. N336R, and from taking any
other action to finally award this contract to any bidder
pending a final determination of the merits of plaintiffs’
complaint. By this written order and previous announce-
ment, the Court accelerated this cause for final hearing to
commence on November 26, 1982 and directed the de
1The Court found that plaintiffs met the four criteria for in-
junctive relief set out in Canal Authority of the State of Florida
v. Callaway, 489 F.2d 567 (5th Cir. 1974): (a) that there was
a substantial likelihood that plaintiffs would prevail on the merits;
(b) that plaintiffs would suffer irreparable injury if injunctive
relief was not granted; (c) that the threatened harm to the plain-
tiff outweighed the threatened harm the injunction may do to the
defendants; and (d) that the granting of injunctive relief would
not disserve the public interest.
45a
fendants to file their answer to the complaint by Novem-
ber 23, 1982. Also, by separate order, the Court per-
mitted intervenor Thacker Construction Company to in-
tervene as a party defendant. Just prior to the final
hearing, Allied Contractors Association and Alfred Lloyd
& Sons, Ine. also filed a joint motion to intervene in this
action. This motion was granted ore tenus by the Court.
This cause came on for final hearing on November 26,
1982 at which extensive evidence was adduced and legal
argument heard from all parties. At the conclusion of
this hearing the Court took all of the issues under con-
sideration pending the release of this memorandum opin-
ion. After considering the entire record developed in
this proceeding* as well as ‘all of the legal memoranda
submitted, the Court now mgkes its findings of fact and
publishes its conclusions of law in accordance with Fed.
R.Civ.P. 52(a).*
Il.
The Court makes the following findings of fact:
A.
1. Plaintiff- South Florida Chapter of The Associated
General Contractors Of America, Inc. (the “general con-
tractors”) is a Florida not-for-profit corporation with its
2 The intervenors chose not to present any evidence of their own
but relied instead on the defense presented by the county defend-
ants. Both intervenors were permitted oral argument and submitted
memoranda of law on the legal issues raised by this action.
3 For the purposes of this memorandum opinion the Court has in-
corporated all of the evidence introduced at the hearing on the
motion for a temporary restraining order of November 16, 1982
and the final hearing of November 26, 1982. The transcripts of
both hearings have been consulted in the preparation of this
opinion.
*To the extent that any of the findings of fact constitute con-
clusions of law they are adopted as such. Conversely, to the ex-
tent that any of the Court’s conclusions of law are found to be
findings of fact, they are so adopted.
46a
principle offices and place of business in Dade County,
Florida, and is organized for the purpose of furthering
and representing the interests of general contractors in
the construction industry. This plaintiff is a trade asso-
ciation which has a membership comprised of, inter alia,
sixty-two general contractors, many of whom regularly
bid on and perform construction work for Metropolitan
Dade County.
2. Plaintiff Engineering Contractors Association Of
South Florida, Inc. (the “engineering contractors”) is a
not-for-profit corporation having its principle offices and
place of business in Dade County, Florida. This Plaintiff
is a trade association comprised of eighty-two member
firms which include, inter alia, general contractors, many
of whom regularly bid on and perform construction work
for Metropolitan Dade County. Plaintiff’s members also
include, inter alia, subcontractors, many of whom regu-
larly bid on and perform construction work for Metro-
politan Dade County.
3. Plaintiff Air Conditioning, Refrigeration, Heating
and Piping Association, Inc., a/k/a Mechanical Contrac-
tors Association Of South Florida (the “mechanical con-
tractors”) is a Florida not-for-profit corporation, having
its principle office in Dade County, Florida and is or-
ganized to further and represent the common interests
of mechanical contractors in the construction industry.
The membership of this plaintiff is comprised of more
than eighty mechanical contractors and subcontractors,
many of whom regularly bid on and perform construction
work for Metropolitan Dade County.
4. Defendant Metropolitan Dade County, Florida,
. (“Dade County” or “county”), is a chartered political
subdivision of the State of Florida operating under Arti-
cle VIII, Section 6 of the Florida Constitution of 1968,
the Dade County Home Rule Charter and the laws of the
State of Florida. At all times material herein, Dade
County, through its Office of Transportation Adminis-
ite teeter tial
47a
tration, was engaged in the construction of a mass transit
system generally known as the Metrorail System, includ-
ing the Earlington Heights Station, contract N336R. As
the owner of the Metrorail System, the county was re-
sponsible for establishing bid procedures and specifications
on all Metrorail projects, including the Earlington
Heights Station.
5. Defendants Barbara M. Carey, Clara Oesterie, Bev-
erly B. Phillips, James F. Redford, Jr., Harvey Ruvin,
Barry D. Schreiber, Ruth Shack, Jorge E. Valdes and
Stephen P. Clark comprise the membership of the Board
of County Commissioners of Dade County (the “county
commission” or “commission”). At all times material
herein, defendants Carey, Oe6esterle, Phillips, Redford,
Ruvin, Schreiber, Shack, Valdes and Clark voted on and
passed all ordinances, resolutions, and policies mandating
the establishment of Black prime contractor set-asides and
Black subcontractor goals on all Dade County construc-
tion projects, including Metrorail construction projects.
The county commission specifically established and imple-
mented Resolution No. R1350-82, requiring that the Ear-
lington Heights Metrorail Station project, contract no.
N336R, be set-aside for a Black prime contractor only
and that fifty percent or more of the value of the prime
contract on such project be set-aside for Black subcon-
tractors.
6. Defendant Merrett Stierheim is the county manager
of Dade County (the “county manager” or “manager’’).
At all times material herein, Mr. Stierheim was the
Chief Administrative and Executive Officer of Dade
County and was responsible for the implementation and
administration of all ordinances, resolutions, and policies
established by the commissioners, including those relating
to the establishment and implementation of Black set-
asides and goals on Metrorail System construction proj-
ects and other Dade County construction projects.
7. Defendant Warren J. Higgins is the Transportation
Coordinator of Dade County’s Office of Transportation
48a
Administration. At all times material herein, Mr. Hig-
gins (the “transportation coordinator”), acting under
the supervision and the direction of the county manager,
was the Metropolitan Dade County official primarily re-
sponsible for the bid procedures and specifications on the
Metrorail System, including the Earlington Heights Sta-
tion Project, contract no. N336R.
8. Intervenor Thacker Construction Co. (“Thacker’’)
is an Illinois Corporation with its principal place of busi-
ness in Illinois, but licensed to do business in the State
of Florida and maintaining an office in Dade County,
Florida. Thacker is in the general contracting business
in Dade County, Florida and is presently performing
construction work for Dade County as a prime contrac-
tor on the North Bus Maintenance Facility project. In-
tervenor Thacker initially bid the Earlington Heights
Station project on July 21, 1982 and is presently rebid-
ding that project.
9. Intervenor Allied Contractors Association, Inc.,
(“Allied” or “Allied Contractors”), is a Florida not-for-
profit corporation with its principle office and place of
business in Dade County, Florida. Intervenor Allied is a
trade association organized for the purpose of furthering
and representing the interests of Black contractors and
subcontractors in the construction industry. Members of
Allied Contractors regularly bid on and perform con-
struction work for Metropolitan Dade County. Inter-
venor Alfred Lloyd And Sons, Inc., (“Alfred Lloyd’’) is
a Black-owned contractor and is a member of Allied
Contractors.®
B.
10. In recent years Dade County has experienced tre-
mendous demographic and social change. As a conse-
quence cf the Hispanic migration to Dade County, non-
5 The foregoing findings of fact have been stipulated to by plain-
tiffs and the county. See joint stipulation filed November 30, 1982.
49a
Hispanic Whites no longer constitute a majority of the
county’s population, although they barely remain the
largest of the three ethnic groups. The Biack population
has dropped from second to third in size. Dade County
estimates, based on preliminary 1980 Census data, indi-
cate that Hispanics now comprise 41 percent of the popu-
lation, Blacks 16 percent, and non-Hispanic Whites 43%.
At the time this case was commenced, the Black popula-
tion of Dade County was estimated to be 17.2% based
upon final census data.
11. Dade County’s economy hus grown consistently
faster than that of the nation as a whole. In 1956, the
private sector provided 224,000 jobs in approximately
20,000 different business establishments in Dade County.
Twenty-one years later, the private sector economy had
added another 300,000 jobs and 18,000 establishments.
The job market increased 133.4 percent, and there was a
92.2 percent increase in the number of businesses. Na-
tionally, during the same period, the number of jobs had
grown only 59.7 percent and the number of business es-
tablishments only 39.1 percent. Similarly, the wholesale
and retail trade industries in Dade County added 78,131
jobs and 6,350 businesses between 1956 and 1977, in-
creases of 103.4 percent and 89.5 percent, respectively.
Nationally, jobs in the same industries grew only 65.9
percent and new establishments only 39.1 percent during
the same period.
12. In the construction industry, however, the national
rate vi growth for the period from 1956 to 1977 exceeded
Dade County’s rate. The number of jobs in the construc-
tion industry increased 40.9 percent nationally and 21.3
percent in Dade County, and the number of construction
businesses increased 49 percent nationally and 39.3 per-
cent in Dade County.
13. Statistical data in the record indicates that in 1977
only one percent of business establishments in Dade
County were Black-owned. Of these, about 82 percent
50a
are owner operated with no additional employees. In the
county’s expenditures for major services and professional
services agreements, only 2 percent of these contracts
have gone to Black-owned businesses, amounting to 3.7
percent of the dollars expended. In the awarding of con-
struction contracts and procurement, less than 1 percent
of the firms involved being Black-owned, the dollar
amount expended for contracts awarded to Black-owned
firms amounted to only 1.4 percent of the total dollar
value of all county construction contracts let.
C.
14. In the aftermath of the May, 1980 Liberty City
civil disturbances, Dade County set out to investigate
and assess the present extent of Black business activity
within the county generally and specifically in relation to
doing business with Dade County. Several investigations
were undertaken by outside consultants and committees
into the underlying causes of these civil disturbances. In-
cluded among their findings was an analysis of the ex-
tent to which Black businesses received county contracts.
The findings, conclusions and recommendations are set
forth in these reports and studies: the Black Business
Disparity Study, Prepared by the Disparity Study Group
Task Force (October 27, 1981) ; Black-Owned Business in
Metropolitan Miami, A Statistical Analysis of U.S. Cen-
sus Data, prepared by Tony E. Crapp, Sr., Director,
Business Development Division, Department of Trade
and Commerce Development, City of Miami (December,
1980) ; An Economie Adjustment Plan for the Civil Dis-
turbance Areas of the City of Miami and Dade County,
prepared by Janus Associates (May, 1981); and the Re-
port of the Governor’s Dade County Citizens’ Committee
(October 30, 1980).* These reports formed the basis for
the development of the county’s race-conscious policy.
6 A later report issued by the United States Commission on Civil
Rights called “Confronting Racial Isolation In Miami,” was re-
aur)... ee
5la
a. The Report of the Governor’s Dade County Citizens
Committee listed the major causes leading to the civil
disturbances as (1) poverty, unemployment and under-
employment; (2) slum housing and living conditions;
(3) functional illiteracy; (4) the perception among
Blacks of the local criminal justice system; (5) inade-
quate youth recreational facilities and activities; (6)
political deprivation; (7) hard core juvenile delinquency ;
and (8) the general failures of society. The report con-
tained a number of recommendations designed to expand
the employment opportunities for Blacks, improve the
quality of public and low cost housing, increase the com-
plement cf Black police officers, and provide special edu-
cational attention for Black students. The report con-
cluded with an eloquent plea for cooperation from all
levels of government, and all sectors of the community,
to join together to create the type of overall program
required to eliminate the underlying causes of racial
tension in Dade County.
b. A second report entitled “An Economic Adjustment
Plan for the Civil Disturbance Areas of the City of
Miami and Dade County” (the “Janus Report’), was
made by Janus Associates, a private consulting firm.
This report was intended to be a comprehensive evalua-
tion of the economic situation in the Black communities
of Dade County as part of an overall proposal for the
development of an economic and adjustment assistance
plan for the areas impacted during the 1980 civil dis-
turbances. Although this report made numerous findings
as to the economic condition of the local Black popula-
tion, and offered a number of recommendations, for our
purposes, only a couple need to be mentioned. The re-
port found that Black business development in Dade
leased in June 1982. The findings and recommendations contained
in that report confirmed much of what the earlier reports said. The
county later adopted the Civil Rights report in addition to the
others. See Findings of Fact No. 28.
52a
County lagged far behind, not only that of the local
White and Hispanic communities, but that of Blacks in
most major cities elsewhere in the United States. This
and other disparities between the Black community and
the rest of the county represented a major threat to
Miami’s continued growth and development as a center
of international trade, commerce and tourism. Along
with its other recommendations, Janus urged the devel-
opment of affirmative action and set-aside programs to
maximize the opportunities of Black-owned businesses in
the public sector.
c. In passage after passage in the Janus report, the
authors described the critical nature of the economic con-
dition in the Black community. Several short selections
deserve quotation:
The Black community presently lacks the tools of
development necessary for economic growth and the
confidence that economic progress can occur. There
are few capital instruments in and for the Black
community and few strong, experienced and well-
supported Black economic and business development
organizations. Entrepreneurial development is mini-
mal, and there are few models of business success
to inspire and provide examples for potential busi-
nesspersons.
Janus Report at III-2.
Against th[e] background of a thriving, growing
regional economy, the economic and demographic
profile of the Black community of Dade County
projects a contrasting picture. Alone among the...
three major population groups, Blacks have not par-
ticipated equitably in this general prosperity or in
the major growth sectors, in terms of either jobs or
business development.
Ibid. at IV-16.
53a
Janus’ assessment is that the Black community of
Miami remains frustrated and explosively volatile,
and that only a sustained, all-out effort to remove
the disparities that separate Blacks from the rest of
the community will reverse this deeply entrenched
mood.
Ibid. at V-17.
d. The Black Business Disparity Study Management
group found that Black business participation in the gen-
eral economy of Dade County and the business activity
of the Metropolitan Dade County government were both
at a level far below their proportion of the population
as a whole.
e. Finally, in the study entitled, ““Black-Owned Busi-
nesses in Metropolitan Miami,” statistical data was ad-
duced that in the period between 1972 and 1977 local
Black-owned firms did not keep pace with the gains
made nationally by Black-owned businesses.
15. In part as a result of the findings and recom-
mendations of these reports, on November 3, 1981, the
Dade County Commission, adcpted Resolution No. R-
1672-81, finding that past discriminatory practices have
impaired the competitive position of Black owned and
controlled businesses and that Blacks had not proportion-
ately shared in Dade County’s economic development.
This resolution initiated a policy to promote increased
participation of Black-owned businesses in Dade County
by developing programs, including specific race conscious
measures.
16. The findings and conclusions of Resolution No.
R-1672-81 are summarized as follows:
a. There is a statistically significant disparity be-
tween the county’s Black population and both the num-
ber of Black businesses within the County and those
receiving county contracts;
54a
b. The gross economic disparity between the Black
community and the other communities in Dade County
created frustrations in the Black community, which frus-
trations resulted in the May, 1980 civil disturbances;
c. Past discriminatory practices have, to some de-
gree, adversely affected and impaired the competitive
position of Black-owned business, resulting in a dispro-
portionately small number of Black businesses in Dade
County;
d. The causes of the statistical disparity involved the
long-standing existence and maintenance of barriers im-
pairing access by Black businesses to contracting oppor-
tunities, and did not relate to the lack of capable and
qualified Black enterprises ready and willing to work;
e. Dade county has a compelling interest in stimulat-
ing the Black business community, which, on the basis
of past experience, is not likely to benefit significantly
in the absence of specific measures to increase its par-
ticipation in county business;
f. Dade county has a compelling interest in promoting
a sense of economic equality for all residents of the
County; and
g. The Black population must be provided with the
opportunity of owning and developing its own businesses.’
7T The entire resolution reads as follows:
WHEREAS, it has consistently been the policy of this Board to
foster economic growth and business opportunities for its popula-
tion and to promote the development of local businesses; and
WHEREAS, this Board believes that the favorable economic
status and future growth prospects of Dade County are integrally
linked to the economic and social conditions of the County’s Black
communities, residents and businesses; and
WHEREAS, this Board established the Black Business Participa-
tion Task Force and charged that Task Force with, among other
things, investigating and assessing the present extent of Black
55a
17. The net result of this action was that the com-
mission initiated a policy at the highest level of county
business activity within the County generally and specifically in
relation to doing business with the Courty; and
WHEREAS, this Board hereby adopts the findings and conclu-
sions of the Task Force; and
WHEREAS, that Task Force found a statistically significant dis-
parity between the County’s Black population and both the number
of Black businesses within the County and those receiving County
contracts; and
WHEREAS, this finding of the Task Force that Blacks have not
proportionately shared in Dade County’s economic development is
in accordance with the findings and conclusions set forth in Black
Owned Businesses in Metropolitan Miami, a Statistical Analysis
of U.S. Census Data, prepared by Toney E. Crapp, Sr., Director,
Business Development Division, Department of Trade and Com-
merce Development, City of Miami (December, 1980); An Eco-
nomic Adjustment Plan for the Civil Disturbance Areas of the
City of Miami and Dade County, prepared by Janus Associates
(May, 1981): and the Report of the Governor’s Dade County
Citizens Committee (October 30, 1980); copies of which reports
are appended hereto, and the findings and conclusions of which are
hereby adopted by this Board; and
WHEREAS, these reports have found that the gross economic
disparity between the Black community and the other communities
in Dade County has greatly exacerbated the frustrations of the
Black’ community, which frustrations resulted in the May, 1980
riots and loom as sources of continuing racial and ethnic tensions;
and
WHEREAS, this Board recognizes the reality that past dis-
criminatory practices have, to some degree, adversely affected our
present economic system and have impaired the competitive posi-
tion of businesses owned and controlled by Blacks so as to result
in this disproportionately small amount of Black businesses; and
WHEREAS, the causes of this disparity are perceived by this
Board as involving the long standing existence and maintenance
of barriers impairing access by Black enterprises to contracting
opportunities and not as relating to the lack of capable and quali-
fied Black enterprises ready and willing to work; and
WHEREAS, Dade County greatly impacts the local economy and
business development through its spending of revenue for various
County projects and other needs; and
56a
government of developing programs and measures to al-
leviate the problem of lack of participation of Blacks in
the county’s economic life. This policy was based on re-
liable, substantial information compiled by independent
investigations. Specific race conscious measures were
authorized and the county manager was directed to mon-
itor such programs and to present periodic reports to
the commission as to their efficacy and viability.
18. The race-conscious policy established by Resolu-
tion R-1672-81 was intended to potentially apply to all
county contracts negotiated in the future. Specific im-
plementation of this policy would await further action
by the commission.
WHEREAS, Dade County has a compelling interest in stimulat-
ing the Black business community, a sector of the community
sorely in need of economic stimulus but which, on the basis of past
experience, is not expected to benefit significantly in the absence
of specific measures to increase its participation in County busi-
ness; and
WHEREAS, this County has a compelling interest in promoting
a sense of economic equality for all residents of the County; and
WHEREAS, this Board believes that in order to effectively com-
bat the unemployment and lack of economic participation of the
Black community, the Black population must be provided with the
opportunity of owning and developing their own businesses,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA:
Section 1. This Board hereby adopts the policy of developing
programs and measures to alleviate the problem of lack of partici-
pation of Blacks in the County’s economic life and to stimulate the
local Black economy, including specific race conscious measures.
Section 2. Any program or procedure established pursuant to
Section 1 above, shall continue until its objectives are met and must
maintain sufficient flexibility to be able to achieve its purpose while
still remaining viable in terms of -he needs of the County to trans-
act its business.
Section 8. The County Manager shall monitor such programs
and present periodic reports to the Board as to their efficacy and
viability.
57a
D.
19. Metropolitan Dade County government is a multi-
billion dollar public concern that expends approximately
620 million dollars annually in outside contracting and
enters into thousands of contracts with business enter-
prises both locally and nationally. These contracts range
from inexpensive procurement contracts to multimillion
dollar Metrorail transit station projects.
20. The Date County Metrorail system is a billion
dollar project financed from federal, state and local
funds. A total of forty-five major procurement and con-
struction rail contracts have been awarded since the be-
ginning of the project to September 30, 1982. The total
dollar value of the forty-four construction and procure-
ment rail contracts awarded amount to $440,831,569. By
adding to the construction and procurement rail con-
tracts, the Kaisar Transit Group subcontracts, bus fa-
cilities contracts, bus design contracts and the downtown
component of Metrorail contracts, the total dollar amount
expended on the Metrorail system to September 30, 1982
totals $581,358,287.
21. As of August 31, 1982 there were 1600 employees
working on the entire Metrorail system. Over half of
that workforce (approximately 53%) is comprised of
minorities (36% Black, 17% Hispanic). Also, more than
20% of the Metrorail and related construction was be-
ing performed by minority contractors and subcontrac-
tors, including approximately 7% by Black contractors
and subcontractors.
22. Twenty stations are presently planned for the
Metrorail system. The Earlington Heights station is the
last station to be bid and it is located within the Black
community of Dade county. This station is classified as
contract number N336R. Although it was originally
scheduled to be bid as a six station package consisting
of the Civic Center, Santa Clara, Allapattah, Overtown,
58a
Culmer and Earlington Heights stations, it was later
separated out of the package to maximize the opportunity
for it to be built by a Black contractor.
23. When the majority of the contracts on the Metro-
rail were already awarded on a competitive basis, cer-
tain actions were taken by county officials following the
adoption of Resolution No. R-1672-81 to apply race con-
scious measures to increase Black participation in the
remaining Metrorail construction projects.
a. The County established a committee which became
commonly known as the Transit Oversight Committee,
which included, inter alia, between four and six county
commissioners, the county manager and the transporta-
tion coordinator. The purpose of this committee was to
meet periodically and review suggestions for the inclu-
sion of race-conscious measures within contract specifi-
cations of each construction contract.
b. Various administrative orders were issued to in-
crease the participation of Black businesses in county
procurement and professional services contracts.
ce. The county adopted a $10 million bond guarantee
program in early 1982 to assist Black contractors and
subcontractors in meeting the bonding requirements on
Metrorail contracts.
24. Even before any final decision was made regard-
ing the application of race-conscious measures to the
Earlington Heights Station, the county was required by
the federal government to adhere to certain minority
business enterprise (MEB) participation standards es-
tablished by the Urban Mass Transportation Administra-
tion (UMTA), and minority employment goals set by the
United States Department of Labor (Labor). By the
time this action commenced, the county’s MBE program
exceeded both UMTA’s minority business enterprise and
Labor’s minority employment guidelines. In this regard,
the county’s affirmative action reports establish that
59a
more than twenty percent of the Metrorail and related
construction was being performed by minority contrac-
tors and subcontractors, including approximately seven
percent by Black contractors and more than fifty per-
cent of the employees employed in the construction were
minorities, including thirty-six percent Black employees.
25. Regulations issued by the U.S. Department of
Transportation pursuant to 49 U.S.C. § 1615 mandate
that as a condition of federal funding, each Metrorail
prime contract must contain provisions insuring that a
percentage of each construction contract amount be
awarded to minority business enterprises or MBF’s. 49
C.F.R. Part 23 contains the following definitions perti-
nent to this case:
a. “Affirmative action” means taking specific steps
to eliminate discrimination and its effects, to ensure
nondiscriminatory results and practices in the fu-
ture, and to involve minority business enterprises
fully in contracts and programs funded by the De-
partment.
b. “Joint venture” means an association of two or
more businesses to carry out a single business enter-
prise for profit for which purpose they combine their
property, capital, efforts, skills, and knowledge.
ec. “Minority” means a person who is a citizen or
lawful permanent resident of the United States and
who is:
(a) Black (a person having origin in any of the
black racial groups of Africa) ;
(b) Hispanic (a person of Spanish or Portugese
culture with origins in Mexico, South or Central
America, or the Caribbean Islands, regardless of
race) ;
(c) Asian American (a person having origins in
any of the original peoples of the Far East, South-
60a
east Asia, the Indian subcontinent, or the Pacific
Islands) ; or
(d) American Indian and Alaskan Native (a per-
son having origins in any of the original peoples of
North America. )
(e) Members of other groups, or other individ-
uals, found to be economically and socially disadvan-
taged by the Small Business Administration under
section 8(a) of the Small Business Act, as amended
(15 U.S.C. 687(a)).
d. “minority business enterprise” or “MBE” means
a small business concern defined pursuant to section
3 of the Small Business Act and implementing regu-
lations, which is owned and controlled by one or more
minorities or women. This definition applies only to
financial assistance programs. For the purposes of
this part, owned and controlled means a business:
(a) Which is at least 51 per centum owned by one
or more minorities or women or, in the case of the
publicly owned business at least 51 per centum of the
stock which is owned by one or more minorities or
women; and
(b) Whose management and daily business opera-
tions are controlled by one or more suc” individuals.
e. “Set-aside” means a technique which limits con-
sideration of bids or proposals to those submitted by
MBEs.
26. Federal regulations require that the recipient of
funds from the U.S. Department of Transportation set
goals that are practical and related to the potential for
MBE participation in the funded project. 40 C.F.R.
§ 23.45(g). For the period commencing with the begin-
ning of the Metrorail System projects and ending Sep-
tember 30, 1982, the county established an MBE partici-
pation goal of 16.5% of the total dollar value of all con-
6la
tracts awarded. As of September 30, 1982 the actual
MBE participation of 19.6% exceeded that goal.
27. On May 7, 1982, the county manager corresponded
with the administrator of UMTA requesting technical ad-
vice as to the best contract procedure for assuring sub-
stantial minority participation in the contract for the
Earlington Heights station. The county manager ex-
plained that barm#ers have existed in the past to contract-
ing opportunities for Black enterprises and that a state
of public exigency exists in Dade County which justified
affording Black enterprises an opportunity for maximum
participation in the Earlington Heights station project.
The administrator responded on June 9, 1982 by stating
that it was the federal government’s intention to allow
Dade County maximum local flexibility and decision mak-
ing authority in the implementation of the county’s MBE
program. He stated that set-asides may be established
when they are not prohibited by state or local law and
when a grant recipient determines that they are neces-
sary io meet MBE goals. He further explained that the
set-aside may be done where at least three MBE firms
with capabilities consistent with contract requirements
exist so as to permit competition. Finally, he concluded
that, “this authorization permits you to utilize whichever
procurement procedure is appropriate to accomplish your
goals in light of local conditions, i.e., noncompetitive nego-
tiation, competitive negotiation or iormal advertising,
provided that the procedure selected is consistent with
and does not violate state law or federal requirements
relating to use of Federal funds or nondiscrimination.”
E.
28. On July 20, 1982, the county adopted Ordinance
No. 82-67. That ordinance required review of all proposed
county construction contracts to determine whether the
addition to bid specifications of race-conscious measures,
including bid credits, goals and set-asides would foster
62a
participation of Black contractors and subcontractors in
the contract work. The ordinance was based on the find-
ings contained in Resolution No. R-1672-81, together
with the June, 1982, report of the United States Commis-
sion on Civil Rights entitled, “Confronting Racial Isola-
tion in Miami,” which was appended thereto, and con-
cluding that Dade County had a compelling interest in
stimulating the Black business community. The ordi-
nance directed the county manager to establish an admin-
istrative procedure to review each county construction
contract to determine whether inclusion of race conscious
bid specifications would foster participation of qualified
Black contractors, and whether it was feasibie to establish
a Black prime contractor set-aside and Black subcontrac-
tor participation goals. The ordinance contained several
definitions of importance:
a. “Black contractor and subcontractor” means a
contracting or subcontracting business entity which
is owned and controlled by one or more Blacks and
has established a place of business in Dade County.
b. “Owned and controlled” means a business which
is at least 51 percentum owned by one or more
Blacks, or, in the case of a publicly-owned business,
at least 51 percentum of the stock of which is owned
by one or more Blacks; and whose manegement and
daily business operations are controlled by one or
more such individuals.
ce. “Blacks” means a person who is a citizen or law-
ful permanent resident of the United States and who
has origins in any of the Black racial groups of
Africa.
d. Goals when utilized, goals shall be based on esti-
mates made prior to bid advertisement of the quan-
tity and type of subcontracting opportunities pro-
vided by the project to be constructed and on the
availability and capability of Black contractors and
subcontractors to do such work. When goals are
68a
utlized, the invitation for bid and bid documents shall
require the apparent lower and qualified bidder prior
to bid award to meet the goal or demonstrate that
he made every reasonable effort to meet the goal and
notwithstanding such effort were [sic] unable to do
so. In the alternative, the bid documents may re-
quire such demonstration regarding the goal or ef-
forts to meet it to be included by all bidders as part
of their bid submission. The steps required to dem-
onstrate every reasonable effort shall be specified in
the invitation for bid and the bid documents.
e. Set-asides. A set-aside is the designation of a
given contract for competition solely among Black
contractors. Set-asides may only be utilized where
prior to invitation for bid, it is determined that there
are sufficient licensed Black contractors to afford ef-
fective competition for the contract. In each contract
where set-asides are recommended, staff shall sub-
mit its recommendation and the basis therefor to
the Board for its initial review and determination
whether waiver of competitive bidding for such con-
tract is in the best interest of the County.
29. By its terms, the county manager was directed to
report to the commission annually on the total dollar
amount of « .nty construction contracts and the per-
centage thereof to be performed by Black contractors.
The Black set-aside and goa! provisions continue in effect
until the commission determines otherwise.*
8 The ordinance provides in full:
WHEREAS, this Board has previously made the legislative find-
ing in Resolution No. R-1672-81, adopted November 3, !981, that
Blacks have not proportionately shared in Dade County’s economic
development z.nd has initiated a policy to promote increased partici-
pation of Blaxk-owned businesses in County contracts; and
WHEREAS, such findings and the bases therefor as contained in
said Resolution No. R-1672-81, a copy of which is attached hereto,
64a
30. At the time it enacted the ordinance, the county
commission adopted implementing administrative proce-
are hereby adopted as the legislative findings on which this Ordi-
nance is based; and
WH2REAS, the above findings are in ace-rdance with the find-
ings and conclusions of the June 1982 repo:t of the United States
Commission on Civil Rights entitled, “Confronting Racial Isolation
in Miami”, a copy of which is appended hereto; and
WHEREAS, the government of Metropolitan Dade County greatly
impacts the local economy and business development through its
spending of revenue for various County projects and other needs;
and
WHEREAS, Dade County has a compelling interest in stimu-
lating the Black business community, a sector of the County sorely
in need of economic stimulus but which, on the basis of past ex-
perience, is not expected to benefit significantly in the absence of
specific race-conscious measures to increase its participation in
County contracts.
NOW, THEREFORE, BE IT OBTAINED BY THE BOARD OF
COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA:
Section 1. Article II of Chapter 10 of the Code of Metropolitan
Dade County, Florida, is amended by adding the following new
section thereto:
Sec. 10-38. Procedure to increase participation of Black con-
tractors and subcontractors in county contracts.
(a) The foregoing recitations are hereby incorporated and
adopted herein and made a part of this Ordinance.
(b) Except where federal or state law or regulations mandate
to the contrary, the provisions of this Section shall be applicable
to all construction contracts funded in whole or in part by
county funds.
(c)(1) “Black contractor and subcontractor’ means a con-
tracting or subcontracting business entity which is owned and
controlled by one or more Blacks and has established a place of
business in Dade County.
(2) “Owned and controlled” means a business which is at
least 51 percentum owned by one or more Blacks, or, in the
case of a publicly-owned business, at least 51 percentum of the
stock of which is owned by one or more Blacks; and whose
management and daily business operations are controlled by
one or more such individuals.
wih aie sti ees
— ore ee
65a
dures. The essential provisions of the administrative pro-
cedure are summarized as follows:
(3) “Black” means a person who is a citizen or lawful perma-
nent resident of the United States and who has origins in any
of the Black racial groups of Africa.
(d) The County Manager shall establish an administrative
procedure for the review of each proposed County construction
contract to determine whether the inclusion of race-conscious
measures in the bid specifications will foster participation of
qualified Black contractors and subcontractors in the contract
work. Such race-conscious measures may include goals for
Black contractor and subcontractor particpation and set-asides.
(1) Goals. When utilized, goals shall be based on estimates
made prior to bid advertisement of the quantity and type of
subcontracting opportunities provided by the project to be
constructed and on the availability and capability of Black
contractors and subcontractors to do such work. When goals
are utilized, the invitation for bid and bid documents shall
require the apparent lower and qualified bidder prior to bid
award to meet the goal or demonstrate that he made every
reasonable effort to meet the goal and notwithstanding such
effort were unable to do so. In the alternative, the bid docu-
ments may require such demonstration regarding the goal or
efforts to meet it to be included by all bidders as part of their
bid submission. The steps required to demonstrate every rea-
sonable effort shall be specified in the invitation for bid and
the bid documents.
(2) Set-asides. A set-aside is the designation of a given
contract for competition solely among Black contractors. Set-
asides may only be utilized where prior to invitation for bid,
it is determined that there are sufficient licensed Black con-
tractors to afford effective competition for the contract. In
each contract where set-asides are recommended, staff shall
submit its recommendation and the basis therefor to the Board
for its initial review and determination whether waiver of com-
petitive bidding for such contract is in the best interest of the
County.”
(e) The County Manager shall annually report to the Board on
the total dollar amount of County construction contracts
awarded that year and the percentage thereof to be performed
by Black contractors and subcontractors. At such time, the
Board shall determine whether to continue in effect the ad-
66a
a. Each department is charged with the responsi-
bility of submitting its recommendations concerning
ministrative procedure for utilization of race-conscious meas-
ures authorized by this Ordinance.
Section 2. Section 10-34 of the Code of Metropolitan Dade
County, Florida, is hereby amended as follows:
Sec. 10-34. Listing of subcontractors not required; exceptions.
Except for contracts for procurement or construction of all
or any part of stage I of the rapid transit system, construction
contracts where race-conscious measures have beer included
in the bid specifications to foster participation of Black con-
tractors or subcontractors, or where federal or state law or
regulations mandate to the contrary, no prime contractor sub-
mitting a bid for a project for which bids have been solicited
by the legal entities to which this article applies shall be re-
quired to list thereon the names of any subcontractors it de-
sires to be employed in connection with the subject project.
Section 3. Section 25A-4 of the Code of Metropolitan Dade
County, Florida is hereby amended by adding the following para-
graph at the end of subparagraph (b) of said section:
For all construction contracts, the trust sha!l comply with the
provisions of Section 10-38 of the County Code and the admin-
istrative procedures adopted pursuant to said section.
Section 4. Section 32A-1 of the Code of Metropolitan Dade
County, Florida, is hereby amended by adding the following after
the last sentence of said action:
For all construction contracts, the authority shall comply with
the provisions of Section 10-38 of the County Code and the
administrative procedures adopted pursuant to said section.
Section 5. If any section, subsection, sentence, clause or pro-
vision of this ordinance is held invalid, the remainder of this ordi-
nance shall not be affected by such invalidity.
Section 6. It is the intention of the Board of County Commis-
sioners, and it is hereby ordained that the provisions of this ordi-
nance shall become and be made a part of the Code of Metropolitan
Dade County, Florida. The sections of this ordinance may be re-
numbered or relettered to accomplish such intention, and the word
“ordinance” may be changed to “secticn”, “article”, or other appro-
priate word.
Section 7. This ordinance shall become effective ten (10) days
after the date of its enactment.
67a
Black set-asides and goals on each construction project
under its jurisdiction ;
b. A three member contract review committee com-
prised of county officials is charged with the responsi-
bility of reviewing the Departmental recommendations
and submitting a final recommendation on Black set-
asides and goals to the county commission for final
action;
ce. Black subcontractor goals are to be based on “the
greatest potential for Black subcontractor participation”
and... “shall relate to the potential availability of
Black-owned firms in the required field of expertise.” ;
d. Availability of Black subcontractors should include
“all Black-owned firms with places of business within
the Dade County geographic area” ;
e. Black set-asides shall be considered where there
exists at least three Black prime contractors with the
capabilities consistent with the contract requirements;
f. A Black prime contractor can be under contract for
up to three set-asides within any one year period, but
no more than one set-aside at a time;
g. Prior to implementation of a Black set-aside, the
county commission is to make findings that the Black
set-aside is “in the best interest of the County in order
to waive formal bid procedures.” ; and
h. Bid procedures limiting bids to Black prime con-
tractors would be implemented.®
® These regulations provide:
1. DEPARTMENT RESPONSIBILITIES
1.01 All departments (including the Public Health Trust and
the Miami-Dade Water and Sewer Authority) with funds
budgeted for capital improvement projects are to develop a
record keeping system which will include the dollar value of all
construction contracts anticipated, a goal for Black participa-
68a
31. On July 21, 1982, pursuant to competitive negotia-
tion procedures, formal proposals were received and
tion for the fiscal year, and the dollar value of contracts
awarded by minority classification.
1.02 Prior to the completion of contract specifications for each
capital project, each department, in conjunction with the
consultant project manager, if engaged, will analyze the trades
certifications required for each project. After considering the
number and types of Black-owned firms likely to be available to
participate in the contract, the goals of the department, and a
suggestion as to the type of race-conscious measures which
could be provided within the contract work are to be developed.
1.03 Suggested actions shall be for (a) establishment of sub-
contractor goals, (b) set-asides for contractors, (c) bid credit,
and (d) no race-conscious requirements.
1.04 Each project is to be submitted to a Contract Review
Committee for action and recommendation to the Board of
County Commissioners.
2. CONTRACT REVIEW COMMITTEE
2.01 A three (3) member Contract Review Committee com-
prised of an Assistant County Manager, the Capital Improve-
ments Coordinator and the Affirmative Action Coordinator is
created. Staff to the Committee will be provided by a Com-
pliance Office included within the Affirmative Action Division.
2.02 The Committee is to meet monthly or sooner, as necessary,
for the purpose of reviewing suggestions for the inclusion of
race-conscious measures within contract specifications of each
construction project.
2.03 Suggested race-conscious actions are to originate by the
County project manager for the construction project and the
consultant project manager, if commissioner.
2.04 Projects are to be submitted to the Contract Review
Committee prior to preparation of the contract specifications.
2.05 The Contract Review Committee, after considering the
number of anticipated subcontractors likely to be employed on
the job, will recommended at what point the subcontractors
will be listed.
2.06 Following review by the Contract Review Committee, a
recommendation is to be submitted to the Board of County
69a
opened for the selection of a prime contractor to con-
struct the county’s Metrorail Earlington Heights Sta-
Commissioners for action, together with the request for ad-
visement.
2.07 Recommendations for set-aside projects require a waiver
of formal competitive bids by the Board of County Commis-
sioners.
38. CERTIFICATION
3.01 All firms participating in the Black Contractors and
Subcontractors Program will be certified as Black firms.
3.02 Certification records will be maintained by the Contract
Compliance Office within the Dade County Affirmative Action
Division.
3.03 Assistance in the certification process will be provided by
authorized community-based organizations under contract with
Dade County.
3.04 Applications for certification will be on standard forms
and will include, but will not be limited to, primary business
location, evidence of ownership, operation, experience, and the
adequacy of the firms.
3.05 Appeals of denials of certification can be made to the
Contract Review Committee.
8.06 Certification of all firms will be updated annually.
8.07 Certification of each firm shall be completed prior to the
award of any contract under the Black Contractors Program.
8.08 A concentrated, public advertising campaign by trade
certification area will be undertaken to encourage certification.
4. SUBCONTRACTOR GOALS
4.01 Percentage goals for the dollar value of subcontractor work
are to be considered when the review of the proposed contract
indicates the greatest potential for Black subcontractor par-
ticipation.
4.02 Goals shall relate to the potential availability of Black-
owned firms in the required field of expertise.
4.08 Availability should include all Black-owned firms with
places of business [that] are within the Dade County geo-
graphic area.
[Continued ]
70a
tion, contract no. N33¢R. Peter Kiewit Sons’ Company,
a non-Black prime contractor, tendered the lowest bid of
$6,796,520. This low bid was more than two million
dollars lower than the next lowest bid of $9,077,316.05,
which was submitted by Thacker Construction Co., a
Black prime contractor. Thereafter, or August 3, 1982,
the county manager informally rejected both bids be-
cause: (1) the bids exceeded the county engineer’s esti-
mate;*® and (2) the bidding process had been compro-
mised by public disclosure of the proposed prices sub-
mitted and by the two bidders obtaining copies of each
others’ proposals, thereby rendering it impossible to con-
® [Continued ]
4.04 When goals are included with the contract of the prime
contractor, bidders shall use good faith efforts to meet the
goals.
4.05 Lack of good faith efforts will make the prime contractor’s
bid ineligible for award and not responsive.
4.06 A prime contractor may include the subpart of the volume
of value of a joint venture of a certified subcontractor towards
the contract goal.
5. SET-ASIDES
5.01 Contracts for set-asides shall be considered in those con-
tracts when at least three (3) certified prime contractors with
the capabilities consistent with the contract requirements exist.
5.02 A prime contractor can be under contract for cnly one (1)
set-aside contract at a time, and no more than three (3) within
any one (1) year period.
5.08 Prior to the advertising for set-aside contracts, the Board
of County Commissioners is to make findings as to the pro-
posed set-aside contract in the best interest of the County
and waiving formal bid procedures.
5.04 Bid procedures limiting competitive bids to Black certified
firms will be implemented.
6. BID CREDIT
‘6.01 Implementation of bid credit will not be done at this time.
10 The county engineer had estimated that the contract should
not exceed $6,060,140.
Tla
clude the bid negotiations under applicable federal regu-
lations. The county manager thereafter proposed to the
commission that the re-bid of the Earlington Heights
station be subject to the requirements of the recently
enacted race-conscious policy set forth in Ordinance No.
82-67 and the administrative procedures enacted pursu-
ant to that ordinance.
32. In accordance with the administrative procedures
now in effect, the contract review committee recom-
mended to the county manager that the commission waive
the use of formal competitive bids, and set-aside the
Earlington Heights contract for competitive bidding ex-
clusively among certified Black-owned firms along with
the inclusion of a fifty percent Black subcontractor par-
ticipation goal. The committee specifically recommended
a set-aside because there were sufficient licensed Black
contractors with an established place of business in Dade
County possessing the financial and technical capabilities
to act as a prime contractor on the project. In addition,
a goal of involving Black subcontractors in fifty per-
cent of the dollar value of the contract work was recom-
mended based upon a consideration of the availability of
Black subcontractors for each sub-trade item of the con-
tract work and the technical and financial capability of
those firms given the job size, bonding and working
capital requirements.
33. On October 5, 1982, the commission adopted Reso-
lution No. R-1350-82, which accepted the contract review
committee’s recommendations and mandated that race
conscious measures be applied to the Earlington Heights
Station. The commission noted that the Earlington
Heights Station is the last Metrorail station to be bid
and is located in the Black community. The commission
specifically found that the:
“. . use of both a set aside and a goal on this con-
tract will contribute towards eliminating the marked
statistical disparity, noted in this Board’s prior leg-
72a
islation, between the percentage of overall Black bus-
iness participation in county contracts and the per-
centage of Dade County’s population which is Black
The resolution found that it was in the best interest of
the county to waive formal competitive bidding proce-
dures and authorized setting aside this contract for com-
petition solely among Black-owned prime contractors.
The resolution also approved the fifty percent subcon-
tractor goal.”
11 The entire resolution reads:
WHEREAS, this Board on November 3, 1981, adopted Resolution
No. R-1672-81, finding that Blacks have not proportionately shared
in Dade County’s economic development and setting forth a policy
to promote increased Black business participation in County busi-
ness; and
WHEREAS, this Board on July 20, 1982, enacted Ordinance No.
82-67 which requires review of proposed county construction con-
tracts to determine whether the addition to bid specifications of
race conscious measures will foster participation of Black con-
tractors and subcontractors in the contract work; and
WHEREAS, pursuant thereto the County Manager has created
a contract review committee to review each construction contract
prior to advertisement and to make recommendations thereon two
this Board; and
WHEREAS, the committee has reviewed the Metrorail Earlington
Heights Station contract together with the data and suggestions
submitted by the Dade County Transportation Administration; and
WHEREAS, the committee has determined that there are suffi-
cient licensed Black general contractors to afford effective compe-
tition for the station contract were the contract set aside for com-
petition solely among Black contractors, and based thereon has
recommended use of a set-aside on this contract; and
WHEREAS, in addition thereto, the committee has estimated
the quantity and type of subcontracting opportunities provided by
the contract and the availability and capability of Black contractors
and subcontractors to do such work and based thereon has recom-
mended a goal of fifty percent (50%) of the dollar value of the
contract to be subcontracted to Black contractors; and
aoe ee onmemare ya
73a
WHEREAS, Earlington Heights is the last of the 20 Metrorail
stations to be bid and is located within the Black community of
Dade County; and
WHEREAS, increased participation of Black contractors and
subcontractors on this contract will have a substantial impact in
the community to be served by this station both in terms of the
credibility of the County’s efforts to involve Black-owned businesses
in the economic growth of this County and in terms of greater
employment opportunities for members of such community; and
WHEREAS, this Board specifically finds and determines as a
matter of fact that the use of both a set aside and a goal on this
contract will contribute towards eliminating the marked statistical
disparity, noted in this Board’s prior legislation, between the per-
centage of overall Black business participation in County contracts
and the percentage of Dade County’s population which is Black; and
WHEREAS, this Board further finds that the use of both a set
aside and a goai will help to alleviate unemployment and stimulate
the Black business community, a sector of Dade County’s economy
which is sorely in need of economic stimulus, but which on the
basis of past experience cannot be expected to receive any signifi-
cant amount of the public funds to be expended on this contract
in the absence of such race conscious measures,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
COUNTY COMMISSIONERS OF DADE COUNTY, FLORIDA,
that:
1. Resolution No. 4-1672-81[sic] and Ordinance No. 82-67, to-
gether with the findings contained therein, and the documents and
reports attached thereto, and the foregoing recitations are hereby
incorporated and adopted as the legislative findings of this Board
and are made a part of this resolution.
2. The recommendations of the contract review committee are
accepted by this Board.
8. This Board finds that it is in the best interests of Dade
County to waive formal competitive bidding procedures for the
Earlington Heights Metrorail Station contract, and authorizes
the set aside of such contract for competition solely among Black
contractors, formal bidding being waived in this instance pur-
suant to Section 4.08(D) of the Home Rule Charter by two-thirds
(2/3) vote of the Boara members present.
4. In addition to the set aside, a goal of 50% of the doilar value
of the contract work for Black subcontractors is adopted on this
project.
il
T4a
84. On October 8, 1982, the county issued its advance
notice to bidders on the Earlington Heights Station.
This notice stated that “Black” means a person who is
a citizen or a lawful permanent resident of the United
States and who has origins in any of the Black racial
groups of Africa. In compliance with the county’s re-
cently enacted race-conscious policy, competition was
limited to Black prime contractors exclusively. The clos-
ing date for submission and the opening of bids on the
Earlington Heights project was November 17, 1982.
35. Two bids were received pursuant to the notice
but they remained sealed since the Court issued its re-
straining order before the scheduled time the bids were
to be opened and announced.
F.
36. There is no evidence that the present Metropoli-
tan Dade County government has imposed any racial
barriers tc Black contractors in obtaining county licenses.
To the contrary, county government has a formal equal
opportunity services division in its Office of Transporta-
tion. This office is charged with meeting federal employ-
ment and MBE guidelines on county projects and vigor-
ously seeks to increase minority involvement in county
contracting. There is no evidence before the Court that
the current Dade County government itself ever en-
gaged in any discriminatory practices against Blacks or
any other members of a minority group.
37. Before any race-conscious measures involving
Black contractor set-asides and Black subcontractor goals
were applied, the county, through the application of fed-
eral minority business participation guidelines, had es-
tablished MBE requirements of forty percent to forty-
five percent on the construction of Metrorail stations in
Black neighborhoods. While Blacks were represented on
the overall Metrorail project in numbers greater than
their proportion to the county’s population in general,
75a
the county desired to make extraordinary efforts to in-
volve Black contractors in the completion of the north
leg of the system located in large part in the local Black
community. The Earlington Heights station became the
focal point for applying the race conscious measures
established by the county.
38. The race-conscious program established by Ordi-
nance 82-67 and applied to the Earlington Heights sta-
tion in Resolution No. R-1350-82 was designed expressly
to impact Black contractors only. It was not designed to
assist members of any other minority group.
39. The ultimate objective of the county’s race-con-
scious program was to remedy the present continuing
effects of past racial discrimination and to take affirma-
tive steps to halt the perpetuation of the vicious cycle
in which fledgling Black contractors were unable to over-
come past discrimination to compete equally with White
contractors. The program’s specific purpose was to rem-
edy the disabling effects of discrimination that exist in
county contracting.
40. For the most part, the various studies and re-
ports that have been introduced into evidence, and that
describe the plight of Dade County’s Black residents, at-
tribute the low rate of participation of Black-owned busi-
nesses, including Black contractors and subcontractors, in
contracts awarded by Dade County, to the continuing
effects of “societal discrimination”—i.e., lack of capitali-
zation, inadequate housing, poor general education and
vocational ing, lack of self-esteem, and lack of ap-
propriate role models. The studies and the statistical
data that they incorporate do conclusively establish that
although more than seventeen percent of Dade County’s
population is Black, only one percent (or less) of Dade
County’s construction contracts are performed by Black
contractors and subcontractors.
41. Although “societal discrimination” may be the
ultimate cause of the extremely low percentage of Black
76a
contractors doing business in Dade County, there is evi-
dence in this record from which the Court can find iden-
tified discrimination against Dade County Black contrac-
tors at some point prior to the county’s present affirma-
tive action program. In reaching this conclusion the
Court has relied on the following point:
a. The record indicates that less than one percent of
Dade County contractors are Black even though the over-
all Black population exceeds seventeen percent. The only
plausible explanation for this statistical disparity is that
Black contractors in Dade County continue to suffer from
the present effects of past discrimination against them.
b. The construction industry nationally has been par-
ticularly slow to open itself to racial minorities.” “[R]a-
cial discrimination in the construction trades on racial
grounds has been found so often by the courts as to make
it a proper subject for judicial notice.” Local Union No.
85 etc. v. City of Hartford, 625 F.2d 416, 422 (2d Cir.
1980), cert. denied, 453 U.S. 918, 101 S.Ct. 3148, 69
L.Ed.2d 997 (1981)."
ce. The extremely low percentage of county contracts
awarded to Biacks in the past.'* While to a certain ex-
tent this is explainable by the low »ercentage of Black
contractors available in the area, to a iarger extent, this
12 Associated General Contractors v. Altshuler, 490 F.2d 9, 12
(1st Cir. 1978), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d
807 (1974).
18 Citing United Steelworkers v. Weber, 448 U.S. 198, 198 n. 1,
99 S.Ct. 2721, 2725, 2725 n. 1, 61 L.Ed.2d 480 (1979). Accord,
Associated General Contractors v. Altshuler, supra. Even at this
date the plaintiff, general contractors, does not have a single Black
member (a Black firm had been invited but had not accepted at
the time of the final hearing).
14 For the years 1977, 1978, 1979 and 1980, the number of con-
struction contracts awarded to Black contractors was considered
“negligible”. Testimony of Charles Blowers at 357.
77a
low percentage is a present effect of past discrimination
egainst Black contractors.
42. Since there are no Black price contractors in Dade
County qualified to perform major county construction
projects, the county therefore solicited and recruited
major, well-established Black prime contractors from out-
side Dade County and the State of Florida in order to
create a pool of Black prime contractor bidders. In order
to fulfill the eligibility requirements to bid on a county
contract, each outside contractor had to maintain a place
of business in Dade County."*
43. The county’s race conscious policy has no express
expiration date. It appears, however, that it was the in
tention of its drafters to have the program expire when
Black contractors receive county contracts in proportion
to their representation in the overall county population."*
44. Plaintiff, the general contractors, comprised of
White and other non-Black prime contractors, has jointly
sponsored with the predominately Black Laborers Union
a scholarship and grant program for the members of the
Laborers Union and their sons and daughters. Over a
fifteen year period, this program financed by contribu-
tions from White and other non-Black contractors, re-
sulted in the distribution of more than $700,000.00 in
scholarships to predominately Black students and more
than $200,000.00 in direct grants to four colleges and uni-
versities, including predominately Black Florida A & M
University, Bethune-Cookman College and Florida Memo-
rial College.
15 Intervenor Thacker Construction Company has established a
place of business in Dade County.
16 Ordinance 82-67 provides that the county manager make annual
reports to the county commission on the percentage of the total
dollar amount of county construction contracts performed by Black
contractors. Conceivably, the commission could revise the race
conscious program to reflect the latest statistical data available.
78a
45. While non-Black businesses could have participated
in the Earlington Heights project as part of a joint ven-
ture and, in fact one of the bidders appears to be a joint
venture, a joint venture would require that the Black-
owned firm have at least fifty-one percent control over
the project.
46. Plaintiffs did not attempt to formally challenge the
county’s race conscious policy while it was being devel-
oped and prior to its adoption by the county commission.
Protest at any administrative level of the government
would have been ineffectual in any event.
47. Requiring that race be taken into account in the
award of a contract has an effect on the contract price.
Obtaining the contract at the lowest possible dollar
amount need not be the exclusive goal of government con-
tracting. Various constraints may effect the final contract
price that have nothing whatsoever to do with race.
48. After reviewing all of the evidence presented in
the various reports and studies introduced into evidence,
the Court expressly finds that the economic condition of
the Black community in Dade County is serious. The
county manager’s description that a state of public exi-
gency exists in Dade County is not unfounded.
IV.
In accordance with the foregoing findings of fact, the
Court makes its conclusions of law:
A.
1. The Court’s first obligation is to examine and de
cide plaintiffs’ pendent claims since a federal court should
not decide federal constitutional questions where a dis-
positive non-constitutional ground is available. Hagans v.
Lavine, 415 U.S. 528, 94 S.Ct. 1872, 39 L.Ed.2d 577
(1974). This admonition is particularly appropriate in
this case since it was recently held in another case simi-
79a
lar to this one that the court there abused its discretion
by reaching the federal constitutional issue where a state
law claim was dispositive of the case. See Schmidt v.
Oakland Unified School District, 662 F.2d 550 (9th Cir.
1981) ; vacated and remanded, —— USS. , 102 S.Ct.
2612, 73 L.Ed.2d 245 (1982). Accordingly, the Court
turns first to Plaintiffs’ two pendent claims contained in
the complaint. Taking them in the reverse order in which
they are presented, the complaint alleges that the county
violated its own competitive bid procedure mandated by
local law when it enacted its race-conscious policy. Addi-
tionally, the complaint alleges that the county’s race-
conscious policy violated the plaintiffs’ rights under the
Florida Constitution. It is the opinion of the Court that
the pendent claims are not dispositive of the federal con-
stitutional issues presented by this case.
(1)
2. The plaintiffs contend that the county’s waiver of
formal competitive bidding procedures on the ground that
the waiver is in the best interests of Dade County vio-
lates the Dade County Home Rule Charter’. Section
4.03(D) of the Dade County Home Rule Charter pro-
vides:
Contracts for public improvements and purchases
of supplies, materials, and services other than pro-
fessional shall be made whenever practical on the
basis of specifications and competitive bids. Formal
sealed bids shall be secured for all such contracts and
purchases when the transaction involves more than
the minimum amount established by the Board of
County Commissioners by ordinance. The transac-
17 The Florida Constitution grants special home rule powers to
Metropolitan Dade County. See Fla.Const. Art. VIII §6 (1968).
Pursuant to that constitutional provision, the electorate of Dade
County adopted a Home Rule Charter which contains special
municipal powers not normally available to county government.
80a
tion shall be evidenced by written contract submitted
and approved by the Board. The Board, upon writ-
ten recommendation of the Manager, may by resolu-
tion adopted by two thirds vote of the members pres-
ent, waive competitive bidding when it jinds this to
be in the best interest of the county. (emphasis
added )
3. It is apparent from the plain language contained
in § 4.03(D) that the county has the necessary discre-
tion to waive the competitive bidding requirements upon
a two thirds vote of the members present. This was done
in this case. In Florida, the general rule is that “a public
body has wide discretion in soliciting and accepting bids
for public improvements and its decision, when based on
an honest exercise of this discretion, will not be over-
turned by a court even if it may appear erroneous and
even if reasonable persons may disagree.” Liberty County
v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505
(Fla. 1982). The county determined to waive competi-
tive bid procedures and to apply race-conscious criteria in
order to eliminate the disparity in the number of county
contracts received by Black-owned businesses. Based upon
the findings contained in the enacting ordinance and reso-
lution and confirmed in the findings made by this Court,
the waiver was clearly within the discretion of the county.
Accordingly, plaintiff’s contention otherwise is without
merit.'®
18 Plaintiffs also claim that Chapter 11A of the Code of Metro-
politan Dade County expressly prohibits the County from enacting
race-conscious remedies. Chapter 11A by its terms relates only to
the areas of employment and housing and, therefore, is inapplicable
to the subject ordinance and resolution which fosters Black business
participation in county construction contracts. Plaintiffs addi-
tionally argue that Section 11A-22(h) of the County Code prohibits
affirmative action programs like the program in the instant case.
Section 11A-22(h) reads:
“(h) Nothing contained in this article shall . . . require
any employer . .. to grant preferential treatment ... on
8la
(2)
4. Plaintiffs second pendent claim parallels their fed-
eral constitutional claim since the Florida courts have
held that the equal protection and due process provisions
of the Florida Constitution confer the same guarantees
and impose the same standards as the equivalent provi-
sions of the United States Constitution. See Florida
Real Estate Commission v. McGregor, 336 So.2d 1156
(Fla. 1976) and Florida Canners Association v. Depart-
ment of Citrus, 371 So.2d 508, 513 (Fla. 2d DCA 1979),
affirmed, 406 So.2d 1079 (Fla. 1982). Accordingly, reso-
lution of this issue is entirely dependent upon the out-
come of plaintiffs’ federal claim and will be controlled by
the Court’s decision in part IV-B of this opinion.’®
account of an imbalance which may exist with respect to the
total number or percentage of persons of any race... em-
ployed by any employer . . . in comparison with the total num-
ber of percentage of persons of such race ... in any com-
munity... .”
This section is taken verbatim from § 703(j) of Title VII of the
Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-2(j). In International
Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct.
1843, 52 L.Ed.2d 396 (1977), the employer argued that statistics
which compare the racial composition of an employer’s work force
to the composition of the population are prohibited by Section
703(j). The Supreme Court expressly rejected this argument
holding:
Evidence of longlasting and gross disparity between the
composition of a work force and that of the general population
thus may be significant even though § 703(j) makes clear that
Title VII imposes no requirement that a work force mirror
the general population.” Jd. 431 U.S., at 339, n. 20, 97 S.Ct.
at 1856-57.
Accordingly, the Court concludes that Chapter 11A is inapposite
and that Section 11A-22(h) does not preclude consideration of
population characteristics in determining discrimination.
19Tn light of the Court’s ruling that the set-aside is impermis-
sible under the Federal Constitution while the goals provision is
acceptable, the Court also concludes that the same result would
follow under the Florida Constitution.
82a
B.
5. At least since 1954 when the Supreme Court issued
Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686,
98 L.Ed. 873 (1954), the elimination of all vestiges of ©
racial discrimination in our society has been a recognized
goal of all branches and levels of government in the
United States. While the removal of purposeful discrimi-
nation has largely been accomplished, the struggle to
achieve complete equality has not yet been realized. Gov-
ernment therefore has sought to advance equality in
American society by using affirmative action programs
which employ racial classifications and numerical goals or
quotas in the distribution of benefits and opporturities.
Constitutional problems arise when courts are compelled
to gauge the extent to which government may go in ap-
plying affirmative action plans to rectify the present ef-
fects of past discrimination. Although the Supreme Court
has issued a trilogy of cases in recent years on this is-
sue,” no clear guidance has emerged in this tangled area
of the law. Until some definitive resolution of the reverse
discrimination dilemma is forthcoming, the legal and
scholarly debate will continue.*!
20 Regents of the University of California v. Bakke, 438 U.S. 265,
98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); United Steelworkers of
America v. Weber, 4483 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480
(1979); and Fullilove v. Kiutznick, 448 U.S. 448, 100 S.Ct. 2758,
65 L.Ed.2d 902 (1980).
21 A number of law review articles have been published since
Bakke that discuss the reverse discrimination dilemma and affirma-
tive action plans; Van Benthuysen, Minority Business Enterprise
Set-Aside: The Reverse Discrimination Challenge, 45 Alb.L.Rev.
1139 (1981); Bohrer, Bakke, Weber and Fullilove: Benign Dis-
crimination and Congressional Power To Enforce the Fourteenth
Amendment, 56 Ind.L.J. 473 (1981). Richards, Equal Protection
and Racial Quotas: Where does Fullilove v. Klutznick Leave Us?,
33 Baylor L.Rev. 601 (1981). The Constitutionality of Affirmative
Action in Public Employment: Judicial Deference to Certain
Politically Responsible Bodies, 67 Va.L.Rev. 1235 (1981). Choper,
The Constitutionality of Affirmative Action, Views from the Su-
POR GIDE Ht <8
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83a
(1)
6. In this case, the plaintiffs are challenging the legal-
ity of a system of race-conscious ordinances, resolutions
and procedures which permit the county to set-aside a
construction contract for competition exclusively among
Black contractors and to establish Black subcontractor
goals on county construction contracts. It is the position
of the plaintiffs that the county is prohibited by the Four-
teenth Amendment from applying its race-consious proce-
dures to the Earlington Heights contract in such a way
that plaintiffs are barred or otherwise restricted from
bidding on the contract solely because of their race.
The Fourteenth Amendment prohibits a state from
“deny[ing] to any person within its jurisdiction the equal
protection of the laws.” The equal protection clause
means essentially that while the state may of necessity,
classify people and activities in order to promote the gen-
eral welfare, those persons and activities which are simi-
larly situated must be similarly treated by law.?? Neither
a state nor one of its subdivisions ** may employ a racial
preme Court, 70 Ky.L.J. 1 (1981-82); Belton, Discrimination and
Affirmative Action, 59 N.C.L.Rev. 531 (1981) ; Lavinsky, Affirmative
Action Trilogy and Benign Racial Classifications—Evolving Law
in Need of Standards, 27 Wayne L.Rev. 1 (1980); Baldwin and
Nagan, Board of Regents v. Bakke; The All-American Dilemma
Revisited, 30 U.Fla.L.Rev. (1978); Fullilove And The Minority
Set-Aside: In Search of An Affirmative Action Rationale, 29 Emory
L.J. 1127 (1980).
22 F.S. Rogster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct.
560, 561, 64 L.Ed. 989 (1920); G. Gunther, Constitutional Law
Cases and Materials 678 (10th ed. 1980); J. Nowak, R. Rotunda,
V.J. Young, Constitutional Law (1978); Van Benthysen, Minority
Business Enterprise Set-Aside: The Reverse Discrimination Chal-
lenge, 45 Alb.L.Rev. 1139, 1142 (1981).
23 Counties and county officers are instrumentalities of state power
for purposes of the equal protection clause. Reynolds v. Sims, 377
U.S. 533, 84 S.Ct. 1862, 12 L.Ed.2d 506 (1964); Small v. Hudson,
322 F.Supp. 519 (M.D. Fla. 1971). Accord, Avery v. Midland
County, Tex., 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968).
84a
classification in the imposition of rights and responsibili-
ties on its residents or in the distribution of benefits
without inviting scrutiny by the courts as to the consti-
tutionality of these classifications. Two recent notable
cases out of the Supreme Court provide some guidance in
resolving the important issue of whether the application
of a benign racial classification is justified in this in-
stance.
7. The constitutionality of a state’s affirmative action
plan mandating preferences on the basis of racial or
ethnic origin was first addressed by the U.S. Supreme
Court in Regents of the University of California v.
Bakke, 488 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750
(1978) .2* The challenge was to an admissions program
adopted by the medical school of the University of Cali-
fornia at Davis. Under that program, sixteen of the one
hundred places were specifically reserved for minority
applicants. Bakke, a white male whose application had
been rejected, alleged that he would have been accepted
but for the Davis affirmative action plan. He argued that
the school had violated Title VI of the Civil Rights Act
of 1964*° and the equal protection clause of the Four-
teenth Amendment.
Five Justices, concluding that an action violates Title
VI only if a similar state action would violate equal
protection, reached the constitutional question. See Bakke,
438 U.S. at 287, 98 S.Ct. at 2746 (Powell, J.), 328, 355,
*' This opinion has been the subject of a number of law review
comments. See 32 Ark.L.Rev. 499 (1978); 92 Harv.L.Rev. 131
(1978) ; 32 Oklahoma Law Rev. 119 (1979); 54 Washington Law
Rev. 373 (1979) ; 58 Or.L.Rev. 311 (1979).
25 This provision states:
“No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.”
The applicability of this statute is not an issue in this case.
85a
98 §.Ct. 2676, 2781 (Brennan, White, Marshall, Black-
mun, JJ.). As to the equal protection question, Justice
Powell expressed the view that all racial classifications
which exclude individuals from the enjoyment of some
opportunity, including those classifications operating in
favor of minorities, call for strict scrutiny. Applying
that standard, he concluded that a state university has
a compelling interest in attracting a diverse student body,
but that the strict racial quota imposed by the Davis
plan was not necessary to the achievement of that goal.
He held, therefore, that the Davis program violated equal
protection. Justice Powell then stated, however, that in
his view race may be considered as one factor in an ad-
missions program aimed at achieving student diversity.
Justices Brennan, White, Marshall, and Blackmun
joined in an opinion concurring and dissenting. On the
equal protection question, they would have held that
racial classifications designed to further remedial pur-
poses were subject only to an intermediate level of scru-
tiny; i.e, the classification must be substantially related
to an important governmental interest. They found the
Davis plan substantially related to the important state
interest in remedying the effects of past societal discrimi-
nation and, therefore, constitutional.”
Justice Stevens, concurring and dissenting, was joined
by the Chief Justice and by Justices Stewart and Rehn-
quist. The opinion by Justice Stevens concluded that the
Davis plan violated Title VI, and did not reach the equal
protection issue.
Thus, a majority of five Justices held that a state uni-
versity admissions program may not employ strict racial
26 This opinion did not articulate a precise test by which lower
courts could be guided in the application of this intermediate level
of scrutiny. These four justices approved both the Davis 16%
quota in Bakke and the Congressional 10% set-aside in Fullilove.
They found that both affirmative action plans were constitutionally
acceptable.
86a
quotas, one of the five reaching that decision on constitu-
tional grounds and the other four on statutory grounds.
A separate majority of five Justices, however, held that
a state university admissions program may take race
into account as one factor."
8. In 1980 the Supreme Court revisted this issue in
Fullilove v. Klutenick, 448 U.S. 448, 100 S.Ct. 2758, 65
L.Ed.2d 902 (1980) ,2* where the Court addressed the con-
stitutionality of the minority business enterprise provi-
sion of the Public Works Employment Act of 1977.% 42
U.S.C. § 6705(f) (2). Under that provision, no federal
grant for a local public works project may be made with-
out assurance by the applicant that at least ten percent
of the amount of the grant will be expended for mi-
nority business enterprises or MBE’s. The implement-
27 The Court is indebted to Judge Fletcher of the Ninth Circuit
for her succinct summaries of Bakke and Fullilove in Schmidt v.
Oakland Unified School District, 662 F.2d 550 (9th Cir. 1981). Since
Judge Fletcher’s terse summaries of these important cases cannot
easily be improved, they have been adopted with some modification
for use in this opinion.
28 Like the Bakke opinion, Fullilove has attracted considerable at-
tention in the law reviews. A number of case comments have been
written about it: eg. 94 Harv.L.Rev. 125 (1980) ; 15 Suffolk U.Law.
J. 306 (1981); 60 N.C.L.Rev. 681 (1982); 38 Wash. & Lee L.Rev.
1315 (1981).
29 The legality of an all-private (no governmental entity was in-
volved), voluntary, race-conscious affirmative action plan was dis-
cussed in United Steelworkers of America v. Weber, 443 U.S. 193,
99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). The Court held that an af-
firmative action plan that was collectively bargained by an employer
and a union and that reserved for Black employees 50 percent of
the openings in an inplant craft training program until the per-
centage of Black craft workers in the plant was commensurate with
the percentage of Blacks in the local labor force did not violate Title
VI of the Civil Rights Act of 1964. No constitutional issues were
implicated by the decision since the plan reviewed there did not in-
volve state action and therefore the principles developed in that
case have minimal significance to the issues raised in our case.
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87a
ing regulations made clear the administrative under-
standing that a waiver or partial waiver is justified to
avoid subcontracting with an MBE at an unreasonable
price, i.e., a price above competitive levels which can-
not be attributed to the minority firm’s attempt to cover
costs inflated by the present effects of disadvantaged or
discrimination. An aggrieved white contractor argued
that the statutory provision violated equal protection.
The Chief Justice, in an opinion joined by Justices
White and Powell, found the plan constitutional and ap-
proved the act. The plurality opinion concluded that Con-
gress acted within its competence in seeking ways to end
procurement practices that can perpetuate the effects of
prior discrimination.
Although the Chief Justice emphasized that “[a]ny
preference based on racial or ethnic criteria must neces-
sarily receive a most searching examination to make sure
that it does not conflict with constitutional guarantees,”
448 U.S. at 491, 100 S.Ct. at 2781, he considered several
factors that tipped the balance in favor of the statute’s
constitutionality :
a. The statute was enacted by the Congress, a co-
equal branch of government, as a remedial measure with
the objective of directing funds into the minority busi-
ness community.
b. Congress had before it abundant evidence from
which it could conclude that this remedial measure was
necessary to eliminate the effects of prior discrimination
that traditional government procurement practices tended
to perpetuate.
ec. The MBE plan envisioned by the statute allowed
administrative waivers and exemptions that would ab-
solve a grantee from compliance with the plan after mak-
ing a good faith effort to achieve its objectives.
While the Chief Justice warned that the MBE statute
“press[ed] the outer limits of Congressional authority,”
88a
448 U.S. at 490, 100 S.Ct. at 2781, he concluded that it
passed constitutional muster since it provided a reason-
able assurance that application of racial or ethnic cri-
teria would be limited to accomplishing the remedial ob-
jectives of Congress and that misapplications of the pro-
gram will be promptly and adequately remedied admin-
istratively.
9. While the plurality opinion did not expli
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