Ruling could end some set-aside programs

Government and industry officials are unsure what will happen now that a federal appeals court has ruled against some Defense Department minority contracting programs.

The  court ruled Nov. 5 that Congress had not proven DOD was discriminating against small businesses owned by minorities and therefore could not justify requiring preferential treatment through contract set-asides. Because the law incorporates an explicit racial classification, it is subject to strict court scrutiny, and Congress “must have a strong basis in evidence,” according to the ruling.

“The statute fails strict scrutiny,” the court ruled.

A DOD spokesman said officials will carefully consider the decision, but it is too soon to know what effect it will have.

The primary rationale of the court’s decision could be the impetus for further action against set-asides, said Robert Burton, former deputy administrator of the Office of Federal Procurement Policy and now partner at law firm Venable. The underlying principle could be applied to women-owned small-business contract set-asides, for example.

DOD spent $15.5 billion, or 5.75 percent of its contracting dollars, with small, disadvantaged businesses in fiscal 2007. 

About the Author

Matthew Weigelt is a freelance journalist who writes about acquisition and procurement.

Featured

  • Cybersecurity

    DHS floats 'collective defense' model for cybersecurity

    Homeland Security Secretary Kirstjen Nielsen wants her department to have a more direct role in defending the private sector and critical infrastructure entities from cyberthreats.

  • Defense
    Defense Secretary James Mattis testifies at an April 12 hearing of the House Armed Services Committee.

    Mattis: Cloud deal not tailored for Amazon

    On Capitol Hill, Defense Secretary Jim Mattis sought to quell "rumors" that the Pentagon's planned single-award cloud acquisition was designed with Amazon Web Services in mind.

  • Census
    shutterstock image

    2020 Census to include citizenship question

    The Department of Commerce is breaking with recent practice and restoring a question about respondent citizenship last used in 1950, despite being urged not to by former Census directors and outside experts.

Stay Connected

FCW Update

Sign up for our newsletter.

I agree to this site's Privacy Policy.