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Hi-Voltage Wire Works11/30/2000
tion of good faith efforts to meet them.
After the passage of Proposition 209, the City's Office of Affirmative Action/Contract Compliance became the Office of Equality Assurance. The City also adopted the Nondiscrimination/Nonpreferential Treatment Program Applicable to Construction Contracts in Excess of $50,000 (Program) at issue here. The Program reaffirms the findings of the 1990 disparity study and attempts to clarify the City's policy of nondiscrimination and nonpreference in the subcontracting of its construction projects to "ensure that the historical discrimination does not continue."
As with the 1983 version, the Program requires contractors bidding on City projects to fulfill either an outreach or a participation component. The "Documentation of Outreach" option entails maintaining records of written notice, or "solicitation letters," to four certified MBE's/WBE's for each trade area identified for the project. Copies of the notice or letters must accompany the bid. The contractor must document at least three attempts to contact the MBE/WBE firms to determine their interest in participating in the project. If any MBE's/WBE's express interest, the contractor must negotiate in good faith. It may not unjustifiably reject any bids prepared by MBE's/WBE's and must specify the reasons for doing so. With respect to the "Documentation of Participation" option, the City determines for each project the number of MBE/WBE subcontractors that would be expected in the absence of discrimination. If a contractor lists a sufficient number of MBE's/WBE's in the bid to meet this "evidentiary presumption" of nondiscrimination, it will satisfy the participation alternative, and the City will not require any documentation of outreach.
A bid failing to document either MBE/WBE outreach or participation is rejected as "non-responsive," and the contractor is deemed not a "responsible" bidder. The Program's requirements apply to all contractors, including MBE's, WBE's, and those not planning to subcontract any portion of the project.
In 1997, the City solicited bids on a project for which plaintiff Hi-Voltage Wire Works, Inc. (Hi-Voltage), a general contracting firm, was the low bidder. Because it intended to utilize entirely its own work force, it failed to comply with either the MBE/WBE outreach or participation requirement. The City therefore rejected its bid. Joined by plaintiff Allen Jones, a City taxpayer, Hi-Voltage initiated this litigation challenging the Program as a violation of article I, section 31 of the California Constitution (section 31) because it required contractors to accord "unlawful preferences" to minority and women subcontractors by giving them "special assistance and information" not provided non-MBE/WBE subcontractors. Plaintiffs sought declaratory relief and an injunction preventing continuation of the Program. The trial court granted plaintiffs' motion for summary judgment, finding that both components of the Program constituted race- and sex-based classifications that violated section 31.
The Court of Appeal affirmed. Considering the language of section 31 in light of the ballot materials accompanying Proposition 209, the court concluded "that the term `preferential treatment' . . . , viewed in its ordinary, natural sense, refers to any kind of treatment favoring one group or individual over another. The prohibition is not limited to set-asides, quotas, and `plus factors,' but extends to all preferences granted to the target groups. [Fn. omitted.]" The court found section 31, as thus defined, invalidated the Program's MBE/WBE outreach option because it does more than "encourag contractors to include MBE/WBE's in soliciting subcontractor bi
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 California Personal Injury Attorneys
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