Sunday, November 27, 2011

Croson Legal Services

CROSON LEGAL SERVICES
John Sullivan, Esq.
jcharlessullivan@yahoo.com

How Croson Legal Services can help you:
               
Public procurement contracts usually require preferences for minorities and women as subcontractors. If you or your company is having difficulties with preferences in a public contracting program or if you are struggling to meet DBE or MWBE goals, Croson Legal Services may be of help.  
Since the Croson decision in 1989, the United States Supreme Court has held that the legal standard for determining whether an affirmative action contracting program is justified is strict scrutiny.     
DISPARITY STUDIES
Governments try to meet strict scrutiny with a disparity study. These studies are often results-driven junk science. I have completed critiques of more than a dozen disparity studies, including studies done by NERA, MGT, BBC, and Mason Tillman Associates. Here are some of the typical problems of disparity studies:  
The key to any accurate disparity study is its calculation of availability. Croson requires that only those firms which are qualified, willing and able be considered available.
Some studies use Dun & Bradstreet as their availability source; some use Census data; others use lists of firms obtained from non-government sources. None of these satisfy Croson’s qualified, willing and able standards.
Here are questions to ask about the availability measure used by the disparity study of concern to you. These are some of the issues I would cover in a disparity study critique.
QUALIFIED-- Does the data source address the qualifications needed to contract with the government? Does the data source consider which firms have the necessary bonding, licenses, equipment and experience?
WILLING -- What about the willingness of firms – the second Croson availability component – to contract with the government? Most businesses have no interest in government contracting and so should not be counted as available as available for government contracts.
ABLE -- The third part of the availability requirement set forth in Croson is a firm’s ability – its capacity – to perform the contracts the government agency awards. Capacity is particularly important in measuring the availability of construction firms. Most construction firms are to small to complete the biggest construction projects. How has the disparity study addressed capacity?
OTHER DISPARITY STUDY FLAWS – Most studies have lengthy anecdotal sections. Anecdotal accounts of discrimination are seldom persuasive since few if any accounts are investigated for their accuracy. There is almost never verification of anecdotes.
Another flaw of disparity studies is that Croson requires serious consideration be given to race neutral measures before resorting to a race conscious program. Race neutral alternatives are seldom taken seriously by either the disparity study or the DBE or MWBE program.
Finally, how recent is the study’s data? The marketplace is always changing and stale data no longer give an accurate picture of the current market. 
Disparity study analyses I did on behalf of plaintiffs played a role in successful court challenges to MWBE programs in Builders Association of Greater Chicago v. Cook County and Engineering Contractors Association of South Florida v. Metropolitan Dade County.
Strict scrutiny demands that any jurisdiction with a preferential program in public contracting demonstrate not only compelling interest (described above) but also that the program be narrowly tailored.   
NARROW TAILORING
There are five facets of narrow tailoring. The two narrow tailoring problems which most often prove fatal to a DBE or MWBE affirmative action program are 1) The inclusion of each MBE group benefitting from the program must be individually justified, separate from other included groups and 2) The percentage MBE or DBE goal must be linked to the percentage of available firms.          In one case I worked on as a litigation consultant, Contractors Association of Eastern Pennsylvania v. Philadelphia, the court found that the city had failed to meet either of these requirements.   
USES OF A DISPARITY STUDY REVIEW
My review of a disparity study could help you in any number of ways. The critique can be shown to the procurement bureaucracy so they know about the weaknesses of the study or that MWBE or DBE goals are not supportable.
If my disparity studfy analysis doesn’t solve your problem, the critique can serve as a litigation assessment and blueprint for a court challenge to the constitutionality of a DBE or MWBE program. 
DBE AND MWBE PROGRAMS
Any public agency accepting at least $250,000 of federal transportation money must implement a Disadvantaged Business Enterprises (DBE) program.  I worked on the most successful challenge to a DBE program, Western States Paving v. Washington State Department of Transportation.
In Western States the court ruled in the contractor’s favor because there was no disparity study covering the state transportation industry. Also, there was no evidence that the firms certified as Disadvantaged Business Enterprises had actually been discriminated against. Every state DOT in the country uses the Uniform Certification Application, which is the form the Ninth Circuit in Western States found deficient.    
          In the event of a lawsuit, I have served in any number of roles:
          EXPERT WITNESS -- At present I am expert witness in Associated General Contractors of America, San Diego Chapter v. California Department of Transportation. Last year I was expert witness in Kevcon v. United States. My role was to review the sufficiency of more than 50,000 pages of evidence offered by the federal government to justify the Small Business Administration 8(a) program. 
          SECOND CHAIR – In 2010 I was second chair in GEOD v. New Jersey Transit. Like the AGC v. Caltrans lawsuit, GEOD attacked a DBE program.
          LEGAL CONSULTANT – Most often I have worked as a legal consultant, aiding the lawyers bringing the suit, as well as the experts. With my years of experience in disparity study litigation and challenges to preference programs, I can save lawyers time and clients money. One case where I served as consultant was Rothe v. Department of Defense. In Rothe the appellate court ruled a federal Small Disadvantaged Business preference unconstitutional and struck down an act of Congress.
COMMERCIALLY USEFUL FUNCTION
For the past year or so, the Department of Justice has been aggressively prosecuting Commercially Useful Function cases. In these prosecutions DOJ alleges that prime contractors fraudulently claimed to hire minority subs. Not to excuse fraud, but I think Commercially Useful Function problems sometimes arise when subcontracting goals have been set arbitrarily or too high. If it would be of help as a mitigating defense, I might provide an affidavit explaining the defects of the goal setting process.
WOMEN OWNED SMALL BUSINESS SET ASIDE
 My article, “Men Need Not Apply,” about the Obama administration’s imposition of a federal set aside for women appeared in the Washington Times. Even wealthy women can participate in that setaside program, which has never been challenged in court, though it appears extremely vulnerable.

If you feel I can be of help to you or your client, do not hesitate to email me at jcharlessulivan@yaho.com. I look forward to hearing from you.

27 comments:

  1. Needing legal services can be a very fragile time. Thankfully when I was in need a friend recommended Marshall Davis Brown in TX to me. He made sure justice was served!

    ReplyDelete
  2. Thank you for the info. It sounds pretty user friendly. I guess I’ll pick one up for fun. thank u






    Litigation Services

    ReplyDelete

  3. You made some good points there. I did a search on the topic and found most people will agree with your blog.

    Matthew Browndorf Lawsuit

    ReplyDelete
  4. These legal service purposes for the fundamental purpose to help protect and promote public confidence in the legal system, the administration of justice and the rule of law. There are many professional that help for all legal services for quality legal service you can contact www.magnals.com

    jury research


    ReplyDelete
  5. Thanks for this interesting sharing clearing different aspects of professional legal service provider firms. Today It is not possible to concentrate on the legal issues for a company owner to get them resolve on its own. So it has become a regular practice that they hire such companies.

    ReplyDelete
  6. This is great information. You have put in a lot of details regarding disparity studies so succinctly. Was checking online for business law services when i found this great read. Thanks a lot for sharing.

    ReplyDelete
  7. Thanks for sharing such a nice information about the legal services. Pre-Paid Legal Services is a network marketing company that provides affordable legal plans to their members for a low monthly fee.
    Zwerling Schachter & Zwerling LLP

    ReplyDelete
  8. Very well said, you clarified these terms for the general public reader.

    landlord tenant toronto

    ReplyDelete
  9. Thanks for defining these legal terms and phrases, got more understanding of this.
    immigration lawyer in toronto ontario

    ReplyDelete
  10. I love what you have provided here with this blog. I really appreciate how up front people can be at times and the benefit that can come from learning more about how to best utilize legal services to your advantage.

    ReplyDelete
  11. Thank you for providing the information. I was searching this type of service as I am in a need of good legal service.
    magnals.com

    ReplyDelete
  12. This is my first time i visit here. I found so many entertaining stuff in your blog, especially its discussion, I guess I am not the only one having all the enjoyment here! Keep up the good work.

    Progressive legal

    ReplyDelete
  13. These legal services really do help out a lot of people and without them a lot of people would suffer and have to deal with a lot of things on their own. It is already hard enough dealing with these things and to have to do it alone is even harder. That is why these services are here to help those in need with bankruptcy, lawsuits, real estate, and other things like that.
    Jak Manson | http://starrandrowells.com/

    ReplyDelete
  14. Thanks for the post it helped out. I have to get some legal help and I didn't know where to start and I found your post. I found the perfect legal service. Thanks!

    Shelby Philips | http://www.c4legal.com

    ReplyDelete
  15. I am so grateful for good lawyers! They can make such a difference in a case. In many instances, disputes can be fought outside of court. It can be challenging enough to deal with things on your own, and having a lawyer can help relieve some of the pressure and stress. http://linktononprofits.com/maryland/legal-services/

    ReplyDelete
  16. Many people have benefited from professional legal services. I myself know of many friends and family who have needed legal services. There are many things that can come up in life, and it's great when you can get the help you need.

    Jessie | http://www.baudlerinjurylaw.com

    ReplyDelete
  17. Great blog !!!! .I am also offering best legal services in uk. http://www.bennettgriffin.co.uk/

    ReplyDelete
  18. Nice Post.thanks for great information .we are also providing help in legal services in Sussex.http://www.bennettgriffin.co.uk/

    ReplyDelete
  19. The best lawyers are the ones who have served in the position of a defendant, a prosecutor, and if possible a judge. This is someone who truly understand law and how to make a case.
    http://www.scottandscottlaw.com/practiceareas.asp

    ReplyDelete
  20. Thanks for sharing such a nice information about the legal services.


    Legal services in Hounslow

    ReplyDelete
  21. People seem to not realize this, but there is someone one out there that needs legal services. That way they can get help with situation and can really get on top of things the way that they are suppose to be. If legal services can help people out like this, then people should not feel bad to ask for help. They deserve all the help that they can get and these services will provide that.
    http://www.ctrlawoffice.com

    ReplyDelete
  22. This is a good article & good site.Thank you for sharing this article. personal injury solicitors Firm

    ReplyDelete