WSDOT is moving forward with its proposal to exclude non-minority women-owned businesses from Washingtons DBE program goals for federally-funded contracts. WSDOT recently submitted its proposal to the U.S. Department of Transportations Federal Highway Administration (FHWA). If approved by FHWA this significant change will go into effect in Washington for the rest of federal fiscal year 2014 and remain in place through FFY 2017.
“WSDOTs proposal will be a de facto exclusion of women-owned businesses from the DBE program” said Ahlers & Cressman attorney Ellie Perka in a recent article. “It is an extreme and unsupported measure that could have long-lasting detrimental impacts on our state joblessness and the economy. Most importantly however by moving to exclude women-owned businesses from the DBE program goals WSDOT is itself discriminating against women. If challenged in a court of law WSDOTs actions may not withstand constitutional scrutiny.” Click here for the full article.
AGC and Ahlers & Cressman had previously contacted WSDOT Secretary Lynn Peterson asking her to not take this step taking issue with the disparity study on which WSDOT was basing its decision.
“We urge WSDOT to reject BBCs (WSDOT consultant) flawed finding that WBEs do not face substantial disparities in the marketplace” said John Ahlers member of AGC’s Legal Affairs Committee. “BBCs conclusion is based upon a tiny unrepresentative subset of Washington firms that does not reflect true market conditions. WSDOT must base its DBE goal on appropriately weighted census data of all firms in Washington. Instead of excluding WBEs WSDOT should propose a goal that ‘encompasses all minority groups’ as is required under the federal rules and clear Ninth Circuit precedent.”
Van Collins AGC Chief Lobbyist and Legislative Counsel challenged the validity of the disparity study conclusions because the study itself was flawed and as a result the DBE goals suggested by the study are unreasonably high.
“In keeping with the holding of Western States Paving v. WSDOT the Department is required to take into consideration both the capability and capacity of minority and women owned companies when making its disparity analysis” Collins told WSDOT. “Our reading of the disparity study is that this type of analysis was not been done. There has been no analysis of minority and women contractors’ qualifications or their capacity to absorb WSDOT work other than by subjective survey and self-identification means. Again this has to the best of our knowledge not been done with consideration that these DBE contractors will most likely also have their availability and capacity impacted by the competing requirements of Sound Transit’s projects. This being the case AGC believes that a proper objective analysis of true market conditions would have resulted in an overall DBE goal that would be reduced from what is currently being proposed.”
Collins also noted that AGC opposes the exclusion of non-minority women-owned firms. “To the extent DBE requirements are imposed by the Department AGC believes that WSDOT’s decision to seek a waiver that would disallow women owned businesses from the list of certified DBEs and therefore counting against DBE project goals is unwarranted and improper” Collins said.
AGC awaits the decision by FHWA on WSDOT’s proposal.