Western Legal Foundation Renews Pursuit of End to Race-Based Federal Contracting
Jul 25, 2017 | by William Perry Pendley
DENVER, CO. A nonprofit, public-interest legal foundation that won a landmark victory over race-based decision-making before the Supreme Court of the United States today replied to a brief filed by the Acting Solicitor General of the United States opposing a writ of certiorari by a Texas company that suffered defeats in its attempt to end the federal government’s use of race to award contracts as unconstitutional, both before a federal district court and a court of appeals. Mountain States Legal Foundation (MSLF) had advised the District of Columbia federal district court that use by the Department of Defense and the Small Business Administration of a provision in the Small Business Act to award federal contracts on the basis of the race of the business owners and operators is unconstitutional. Its brief was filed as a friend of the court in the federal lawsuit brought by Rothe Development, Inc., a Texas company that bids on and performs contracts for computer systems and programming services. In 1995, MSLF prevailed in a similar case at the Supreme Court of the United States in the landmark racial preference lawsuit, Adarand Constructors v. Peña, that Time called “a legal earthquake.” Over a strong dissent, a three-judge panel ruled the provision was not race-based. MSLF now represents Rothe Development, Inc.
“It is crystal clear that federal law requires the government to distribute benefits on the basis of race or ethnicity. Therefore, the Supreme Court should grant our client’s petition to address whether strict and usually fatal scrutiny applies to the statutory provisions of the federal program,” said William Perry Pendley, president of MSLF.
Rothe often bids for contracts with government agencies, including the U.S. Department of Defense (DOD) and branches of the military, to service computer systems. In 1998, Rothe lost a bid for a DOD contract to another company, despite being the low bidder, because the contract was awarded pursuant to a race-based program. In 2008, the United States Court of Appeals for the Federal Circuit ruled that the race-based program, on its face, as reenacted in 2006, violates the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution.
Unfortunately, the DOD continues to award contracts on the basis of race-base through use of Section 8(a) of the Small Business Act, which sets a “government wide goal” that “not less than 5 percent of the total value of all prime [federal] contract and subcontract awards for each fiscal year” be awarded to socially and economically disadvantaged small business concerns. The Small Business Administration (SBA) is authorized to contract with DOD to provide goods and services and then to subcontract that work to qualifying businesses, either on a “sole source” or on a “competitive” basis; most of the DOD Section 8(a) contracts are sole source. To participate in the program, a firm must be 51 percent owned and controlled by socially and economically disadvantaged individuals, defined to include “Black[,] Hispanic[,] Native[,] [and] Asian Pacific Americans . . . and other minorities”).
Mountain States Legal Foundation, created in 1977, is a nonprofit, public interest law firm dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system. Its offices are in suburban Denver, Colorado.
For more information: Rothe Development Inc. v. U.S. Department of Defense
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