Running Head: ADARAND VERSUS PENA
Facts: The United States Department of Transportation was seeking subcontractors for a
guardrailproject. This job paid $20,000 to whoever won the bid. Under the federal contract, the
primecontractor receives financial incentives for employing subcontractors that are considered a
disadvantaged business. Adarand, a local business that specialized in guardrailing, bid on the
project. Gonzales, a certified minority business, also bid on the job and at a higher rate than it??™s
competitor, Adarand. Although Adarand??™s bid was less, the work was givento the minority
business. Adarand may have been chosenhad it not been for the compensation given to
the prime contractor for choosing Gonzales.
Issue: Is the disadvantaged business classified as ???disadvantaged??? on race alone, and
doesit violate the 14th Amendment??™s clause of equal protection
Rule of law: There are several different laws used in this case. Both the 5th and 14th
Amendment are interpreted the same. The Fifth Amendment??™s Due Process Clause contains an
equal protection clause that states ???no state shall make or enforce an law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state deprive any person
oflife, liberty, or property without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.??? The Small Business Act defines economically
disadvantaged businesses as those who are unable to establish capital and credit like businesses
that are not socially disadvantaged. The businesses being identified as ???disadvantaged??? are not
solelyidentified by race only. The Executive Order 10925 prohibits federal government
contractorsfrom discriminating on account of race. Part III section 301 (2) states the
contractorwill, in all solicitations and advertisements for employees placed by or on
Adarand 3
behalfof the contractor, state that all qualified applicants receive consideration for
employmentwithout regard to race, creed, color or national origin.
vacated and remanded by the Supreme Court. Outlined by the court, were three examinations
needed for all racial classifications. The three examinations were skepticism, strict scrunity (law
or policy judged constitutional or not) and finally, congruence (the limits on federal race
case was race neutral but could not agree on the level of scrunity. To satisfy strict scrutiny, a
programmust be narrowly tailored to serve the relevant interest. I feel that the court did not
establish a clear enough way to evaluate particular programs in which race is used in the decision
makingprocess. In reviewing this case, I read where Gonzales was a certified minority business
but where certification was obtained is unclear and not stated in the case. My view on this case
isvery cut and dry. Two companies are bidding on a job, one company bids less and specializes
inguardrail work, the other is chosen because there is a financial gain for the prime contractor
Conclusion: I do not agree with the fact that federal agency contracts offer a financial incentive
for hiring small businesses that are controlled by social and economically ???disadvantaged???
individuals. Adarandwill always have to bid against these kinds of businesses. Adarand bid on
all guardrail projects in Colorado and I feel that future bids on jobs with federal agencies will
endjust as this one did. If I were searching for a subcontractor to do a job for my business, I
would look at their references, the quality of work and what would be most cost efficient for my
company. Looking from a small minority businesses??™ view, I would not expect my company to
be chosen because of my social or economic standing. The cost and quality of work is what
should be considered. I am more in favor for free enterprise. My opinion is that Adarand will
continuewaiting for a rule in their favor that they will never receive. Adarand had a legitimate
References
http://laws.findlaw.com/us/000/u10252.html
http://www.oyez.org/cases/1990-1999/1994/1994_93_1841/
http://www.eeoc.gov/abouteeoc/35th/thelaw
