A new Oregon Department of Transportation database will help the agency to better monitor the inclusion of minority- and women-owned subcontractors in its construction and maintenance projects — but not in the way the agency originally intended.
A recent decision by the federal 9th Circuit Court of Appeals that struck down "hard" diversity contracting targets means the agency can no longer set definite goals for hiring minority- and women-owned businesses, said Michael A. Cobb, manager of ODOT's Office of Civil Rights.
But, he added, extending state contracts to such businesses remains an institutional goal at ODOT, and the agency will continue to include minority contractors — it just can't measure its success against its own internal yardstick.
Thus, the new database, called the Civil Rights Compliance Tracking System, can't track progress toward predetermined goals but instead will monitor the general progress statewide toward a more diverse subcontracting base and workforce, Cobb said.
"The decision said that for states to set hard goals in their contracts was no longer permissible without first doing a disparity study," said Cobb, who is also diversity manager for the Oregon Transportation Investment Act Bridge Delivery project, currently the largest ODOT initiative.
"You have to show compelling evidence (of contracting discrimination) … and that's usually done with a disparity study."
Such a study is in the works, Cobb said, but the prevailing attitude toward diversity within the agency remains unchanged in the wake of the 9th Circuit decision and will stay that way once the results of the disparity study are in. In the absence of hard diversity targets, ODOT will continue to expand diversity in its subcontracting base anyway.
"What I've been saying to anyone who will listen is that the disparity study is not really the answer; it's not the silver bullet," he said. "What we need to do is to keep figuring out ways for small business and the prime contracting community to come together, to work together … .
"The disparity study might come back and say, 'Oregon, you don't have a disparity here.' So then what do we do? We're right back at Square One again. So we just have to keep finding ways to include small and minority businesses."
So the agency has come up with a plan to do just that — the ODOT Small Business Initiative. ODOT Director Matt Garrett assembled a meeting last month with members of the small-business community, heads of various chambers of commerce, representatives from Gov. Ted Kulongoski's office and from organizations of underrepresented businesses, including the Oregon Association of Minority Entrepreneurs.
"What Matt Garrett said was that we, as a triumvirate — ODOT, the small-business community and the contracting community — need to look at the barriers, real and perceived, that keep small and minority businesses from participating and find ways to remove those barriers."
Cobb added that similar meetings around the state will continue to ensure that prime contractors and subcontractors understand the agency's position regarding diversity.
So far, Cobb said, the prime contracting community has been receptive to the agency's goals, but ODOT can't enforce sanctions if contractors fail to seek out women- and minority-owned businesses the way it could before the 9th Circuit decision. Instead, ODOT will present each of its prime contractors with "aspirational" goals.
"If a contractor says 'No, I can't do it,' then we have no recourse," he said.
In the meantime, pending the result of the disparity study, Cobb said ODOT is encouraging minority- and women-owned subcontractors to continue doing as they have been doing—apply for jobs with prime contractors and keep their certifications up to date.
"It's not an ideal situation," Cobb said, "but what we hope to achieve with this series of meetings is getting recommendations from small businesses and contractors in terms of what things can be fixed."
For example, Cobb said that ODOT keeps hearing from prime contractors that they would hire more women- and minority-owned subcontractors if those businesses knew better how to prepare bids and do other business tasks. This is echoed on the subcontractor side, he said, where many owners are daunted by the paperwork required to work with ODOT.
"So one of the things that might come out of these meetings are classes that teach small businesses how to prepare a bid, how to write up a proposal," he said.
Cobb said it was unclear, based on the 9th Circuit ruling, whether the agency would be open to legal challenges over its continued pursuit of diversity.
"Legal challenge is always possible, but all we're really trying to do here is to get all these parties together," he said. "Whatever we do, we're not forcing anyone to do anything."