AFFIRMATIVE ACTION
IN PUBLIC & PRIVATE PROCUREMENT
ENGLISH LAW
LaSadia Whitman

Abstract
Throughout history, there have been many policies and laws that have been passed to make America, a county that will offer a citizenship equal liberty, rights and equal opportunity. In my paper I will discuss the path on how affirmative action was established, and how it is important to public and private procurement. I will use examples of affirmative action from recent discriminating cases. I will show how affirmative action affects federal and subcontractors within the government agencies. I will also talk about how high level manager uses affirmative action within their companies. I will also discuss the path of affirmative action how the changes affect the veterans that have served in the U.S. military. Finally I will discuss how affirmative action has helped changed America for the benefit of the people.

“Preferential affirmative action patronizes Americans, blacks, women and others by presuming that they cannot succeed on their own. Preferential affirmative action does not advance civil right in this country” (Alan Keyes). As many decades have past, the question of whether America is place where equal opportunity is available to every citizen of the United States has grown as major debate throughout society. The legal meaning of affirmative action is the employment programs required by the federal statutes and regulations designed to remedy discriminatory practices in hiring minority group members. Affirmative action also means that positive steps are taken to increase the representation of women and minorities in the areas of employment, education and business (Geraldine Linshine). The author’s philosophy of affirmative action is that the United States should be place, when one citizen is treated unfairly an injustice should be against all people. He feels that it is the duty of Americans to make sure that all injustices are eliminated. Affirmative is program that was established to make sure equal citizens are treated equally under the law.
Affirmative action was first introduced by President Kennedy in 1961. President Kennedy used the Executive Order as affirmative action the first time by instructing federal contractors to take affirmative action to ensure the applicants are treated equally without regards to race, religion. He used it as method of relooking at the issue of discriminating that had become a major problem for the United States. However it was developed for the first time by President Lyndon B Johnson in 1964, where he signed the Civil Right Act. (Linshine, Geraldine). In 1965 President Lyndon B Johnson developed an Executive Order 11246, in which the goal was to promote employment opportunity. The Executive order was to prohibit federal contractors and federally assisted construction contractors and subcontractors who work over $10,000 in government business in one year from discriminating in employment decisions. The contractors were required to do affirmative action plan to make sure everyone was treated fairly. In 1967, Johnson expanded the Executive Order on affirmative action requirements to benefit women. The OFCCP enforces the Section of Rehabilitation Act of 1973. In Section 503 of the Rehabilitation Act of 1973, it required that Affirmative action plans required firms of all l personnel to qualify individuals with disabilities (Holzer Harry). The policy applied to all firms that had non-exempt government contract or subcontract costing $25,000 or more.
In 2000 affirmative action helped establish equal pay to the U.S. Department of Labor. The U.S. Department Labor Office of Federal Contract Compliance Programs enforces the Executive Order 11246 and developed its regulations. The EEO requires that supply and service contractors that have 50 or more employees and has contract of $50,000 or more to developed and maintain a written affirmative action programs. The new affirmative action regulations included, Equal opportunity surveys, for government programs. These programs were created to advance self-employment opportunities for minorities and women. MBE programs were establish to create and help stop the wide spread of discriminating against minority owned business. The Congressional cognizance was established by Congress at the Department of Transportation. Chief Burgess reviewed the legislative history of Public Works and the Employment Act of 1977(Holzer, Harry). There had been many controversy issues with governmental programs dealing with affirmative action. In the case Adarand Constructors, Inc. v Pena 115 S Ct. 2097, the Supreme Court held that the government should set aside programs that meet the strict scrutiny standard. The restrictions mainly focus on federal presumption of socially and economic disadvantages which developed from past discriminating. The court stated the challenge in the Adarand case was that the federal government would have to start giving to general contractors for working on governmental projects a financial incentive. They would also have to start hiring sub-contractors with disabilities.
In 2002 675% of federal procurement dollars were awarded to business companies. The Small Business Administration Court decision and state measures have reduced the scope of some settings which eliminated affirmative action programs based on race and gender. These programs made it possible for federal contractors could either be sued or barred from other contracts because of discriminations complaints filed against them (Farris, Denise).
Throughout the federal government, there are several programs that were seeking to increase procurement and contracting with minority and women owned business. The Small Business Administrator is the overseer over a widespread of programs. The goal is to use those programs to increase the number of contracts awarded to minority owned business. Researchers found that 93% of procurement is with non-minority firms.
The Federal Contract Compliance was created to enforce better policies to benefit the job seekers and wage earners, and also make changes to contract guidelines, and procurement activities of government agencies and authorities. Changes beginning to improve for small business and capital ownership programs, it helped open doors for small business to obtain federal procurement contracts. In 1998 the state awarded $14.6 billion of construction and repair contracts using federal funds. Many firms owned by minorities were awarded 1.9 billion in contracts (Farris Denise).
The Federal Highway Administration uses affirmative action to help receive awards for federally funding for road construction projects. The FHA program helped increase the purchases for disadvantages business enterprises. The goal of the programs is to be able to award disadvantages business enterprise with a greater share of contract dollars to minority owned firms. On June 14, 2011, the U.S. Department of Labor’s Office of Federal Contract Compliance released a new directive to outline the process by which the federal supply and service can apply for Functional Affirmative Action Program agreements. The Affirmative Action Program was designed to help contractors identify and analyzes potential disparities related to employment of women. Contractors can also use AAP to determine with specific procedures that they would follow. The Federal Affirmative Action Program agreements allow large contractors the flexibility to create AAP’S by functional business unit rather than individual establishment (Beliz, Herman).
One example of an affirmative action case dealing with federal contractors is the Adarand Construction Case. In the case of Adarand Construction Inc. Petitioner vs. Federico Pena, Secretary of ET. Al, the petitioner contractor appealed judgment of the United States Courts of Appeals for the Tenth Circuit upheld the federal government racial classification used by respondent Secretary of Transportation in awarding contracts. The petitioner challenged the classification on the Fifth Amendment on equal protection grounds. The petitioner, lower the bid on a federal contract, was denied the contract because a presumptive preference was given to the minority business entites. The petitioner sued, claiming the violation of U.S. Constitution Amendment and equal protection rights. The lower federal courts rejected the claim and relied upon the precedent which is subject to the U.S. Constitution vs. the equal protection claiming violation of U.S. constitution to intermediate security. The Supreme Court reversed and remanded, holding that the petitioner could claim injury owing to discriminatory classification which prevented it from competing on an equal footing. The United State Supreme Court based its precedent for this case from Richmond v. J.A Croson. In this case the plaintiff was concerned about the city determination that 30% of its contracting work should go to minority-owned business. A majority of the court in Croson, held that the standard review under the Equal Protection Clause is not dependent on the race of those who are burden by a particular classification, and that single review for racial classification should be strict scrutiny. Justice O. Connor concluded “that strict scrutiny must be applied to all governmental classification by race”. The court thought that the city had not acted with a strong basis in evidence that the remedial action was necessary in this case. The court also thought that the program is obvious was not narrowly tailored to remedy the effects of prior discrimination. In the Croson case the court was able to establish three general propositions that categorize governmental racial classifications. The First category was based on opinion from J. Powell; he stated that “any preference based on racial or ethnic criteria must necessarily receive a most searching examination”. The second opinion came from Stewart J., and he quoted that “any official action that treats a person differently on account of his race or ethnic origin is inherently suspected. The third component came from the equal protection analysis in the Fifth Amendment by J Powell. The courts combined all three components and came up with the conclusion that any person of whatever race, has the right to demand any governmental actor are subject to the Constitution justify and racial classification subjecting that person to unequal treatment under the strict scrutiny.
The Small Business Act declares to be a federal policy requires that small business are owned and their concerns are dealing with socially and economically disadvantages individuals having maximum practicable opportunity to participate in federal contracts. The Small Business Act goal is to increase participation with small business owners that effect by social and economic challenges that they are concerned about. In order for a business to participate in Small Business Act program, the business must be small and the members must be Black, Hispanic, Asian, Native Americans. The Federal law requires that a subcontracting clause must be in most federal agency contracts and it also requires the clause states that the contractor shall presume that socially and economically disadvantages individuals must include a variety of different races.
There certain rules of affirmative action that manager has to use as a part of their hiring process in the workplace. Affirmative action is used for public and private sectors. Some laws may apply to private employers but others would be educational institution. An affirmative action plan consists of statistically analysis of the employer’s under the utilization of individuals from certain classes, which includes steps to improve the representation within the workforce. Some Affirmative action plan can be court ordered or volunteer. If the Affirmative action plan is court ordered, it will help prevent them from being overly obligated from third parties and from allowing unqualified individuals to be promoted or hired. Some employer used voluntary affirmative action programs mostly to remedy past impact against a particular class.
Title VII was set up by the government, this policy was established to prevent many forms of discrimination in the work place. Title VII was used to allow affirmative action to improve and add balance to industries that are known for having historical and statically imbalances (Marion, Justin). They utilize these programs by encouraging employers to show preference to minority employees with equal qualification until the balanced is achieve.
As history and more laws have been created, researchers found that affirmative action has been part of government contracts for over 40yrs now. The affirmative action program in government contracting allows opportunities for minorities in subcontracting, and price evaluation adjustment. There have been several changes that have occurred that could end as a result of the procurement process which could affect many of the small disadvantages business and cause them to be ineligible for government contracts. The bill would deny large business access to government, small business set-aside programs and extending the socially and economically disadvantage business programs (Bradley, Patricia). Only July 19, 1995, President Bill Clinton, issued a directive to all federal agencies mandating an affirmative action programs must be eliminated or reformed to establish a certain guideline. He wanted the plans to include quotas, create preferences for unqualified individuals. The plan should also establish a reverse of discrimination, and to continue to promote equal opportunity. There have been many laws passed for affirmative action, and some of those laws were to protect Veterans who worked as federal contractors. The Office of Federal Contract Compliance in August 2007 in which the government developed a program to reach out to Veterans that were seeking employment. These regulations implement new provisions for The Job for Veterans Acts of 2002 for contractors. The JVA amended the provisions of the Vietnam Era & Readjustment Act of 1974. The new regulation was applied to cover government contracts and the existing regulations were located in 41- CFR Part-60-250(Conway, Richard, Berger, Joseph). The JVA goal was to expand the coverage for veterans with disabilities. The new regulations would review the guidelines for veteran’s compensation, and define what makes a veteran disable. The new regulations states that a veteran of the U.S military or ground, naval or air service would be entitled to compensation for the service served. The JVA also modified the guidelines and requirements to work as contractor. The old regulations allowed contractors to satisfy the job obligations and requirements by listing with the local employment service or American Job Banks. The JVA was known for not only altering the requirements for contractors, but it helped raise the threshold for contracts and contracts from $50,000 to $100,000. The OFCCP founded that a small percentage of contractors will be required to follow both set of VEVRRA regulations. The basic requirement of the new regulations was to include an equal protection clause in each covered contract or sub contract. The Subpart of Contract B prohibited companies to discriminate against qualified individual because of their personal status. The Subpart C was to cover every government contractor with 50 or more employees and a contract valued at $100,000 or more, within 120 days of commencement of that contract, they must prepare an affirmative action plan for veterans. Under the new proposed rules contractors and subcontractors was required to always report the number of employees by job category and location and addition to the veterans that are covered. In the Subpart D would allow the OFCCP to conduct compliance evaluations to determine if the contractor is following the requirements of an affirmative action plan (Lewis, Johnson). Affirmative Action plan for veterans made by federal contracts were changed to, the goal was to make for sure that small business has opportunity to receive a government contract. The Veterans Benefit Act 2003 gives contracting officers the authority to set aside procurements and provide more awards to Small Business companies. America is place of liberty, equality, and freedom of speech. Under the Bill of Rights, the 14th Amendment states that “no state could deprive any person of life and liberty or property, without due process of law; nor deny to any person with its jurisdiction of the equal protection laws”. Affirmative Action programs were created to developed unity in the workplace, as well as in the military. Affirmative Action is important for our country, we are one nation. I think that it is not only fair but important that we as citizens are given the same rights and opportunities as others would have been given.