KCMO Sued for Civil Rights Violations

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KCMO Sued for Civil Rights Violations

Post by normalthings »

DOJ is suing KC for using racial quotas/set asides in the bidding process. This is certainly coming about due to the city requiring their prime contractor to select a politically favorable minority firm earlier in the year.

They reference a Supreme Court case that ruled Richmond could not use quotas.
The second link is to the Richmond case and how cities edited their rules to get around it. Sounds like Richmond got in trouble because they had a hard requirement set arbitrarily. KCMO essentially has the same level of requirements but it is based off a regular disparity study.

The workaround to the Ricmond case is to require firms to employ good faith efforts to try and reach a certain goal. KC also has a good faith effort workaround but I believe penalizes contractors who they find do not employ good faith efforts.

Supreme Court
The statute therefore mandates that the actual contract award be made on a race-neutral basis to
the lowest responsible bidder.
KCMO Ordinance Wording
Good faith efforts to encourage and attempt to obtain participation of qualified MBEs and/or WBEs and shape the scope, specifications and size of a contract to enhance such participation

So does this mean that you can not select a bidder based on their proposed MWBE participation rate? Does this extend to the bidding processes used on incentivized projects? How far can you go before setting a goal effectively becomes enforcing a goal? I think where KCMO could potentially get into trouble is related to MWBE in incentive programs.

From KCMO Ordinance
Prior to an incentive agency providing tax incentives to a developer, including the issuance of a tax abatement certificate or the payment or reimbursement of redevelopment project costs, the developer shall have provided to the incentive agency and the incentive agency shall have incorporated within the incentive agency contract a CUP for construction services and professional services that has been approved or deemed approved by the director or the board, as applicable, or in the event a CUP has not been approved or deemed approved by the director or the board, then the incentive agency or city department shall incorporate within the incentive agency contract a CUP which provides for goals established pursuant to section 3-431.
How CUPs are approved (or not) could effectively institute a required quota. I am not a lawyer but it seems like KCMO's ordinances are in line with the law. Despite, the DOJ announcement making it sound like they are openly out of line in having the system in general. I think it will come down to how they are applied in deciding the case.

https://www.justice.gov/opa/pr/civil-ri ... ontracting

https://ncdoj.gov/opinions/public-contr ... rovisions/
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