HOW TO EVADE AFFIRMATIVE ACTION PROGRAMS FOR MINORITY CONTRACTORS (OR HOW TO DRIVE COMPLIANCE OFFICERS OFF THEIR ROCKERS)

You are a general contractor proposing to bid for some work from a public agency. This public agency has an Affirmative Action Program requiring the use of minority ‘subs’ and, unlike other agencies, it seems to be making a serious attempt to enforce it. You, of course, have nothing against minorities. After all, when your people first arrived from the ‘Old Country’ they were minorities, and you still consider yourself to be a minority.

However, you disagree with Affirmative Action Programs in principle. After all, why should some minorities receive preferential treatment over others? You had to fight and scramble for what you have. Nobody gave you any quarters. Why should these other people get contracts just because they are minorities? Then, on the practical side, who wants a bunch of inexperienced, incompetent, financially weak minority sub-contractors messing up a good job?

Perhaps you should do everything in your power to frustrate this affirmative action program, that is, without getting exposed or blacklisted or censured. You can do it; just follow the simple rules and procedures below:

  1. Always be courteous; always be congenial (especially to compliance officers).
  2. Always express sympathy for minorities.
  3. Never refuse to do anything.
  4. Promise anything, and then procrastinate like hell.
  5. Never give the slightest inch without struggle.

Procedures

1. Secure one or more lists of minority contractors.

Community organizations are excellent sources of these lists. The lists are usually out of date. Many of the firms listed will have moved or gone out of business or changed trades, union status, size or financial condition. But do not worry about it. This is to your advantage.

2. Send out invitations-to-bid to every name on all lists.

Do not discriminate at this point. Send the invitations to general contractors, janitorial supply firms, funeral directors, etc. After all, how do you know which are genuine subcontractors and which are not? Further, the more contractors like yourself sending out these bogus invitations, the fewer the number of minority contractors who will be foolish enough to respond. Perhaps, half of the invitations will come back stamped ‘forwarding address unknown.’ Save all of those in order to prove your ‘good faith’ later.

Many contractors do not send these invitations-to-bid out until three or four days before the bid opening. But it is recommended that you send yours out about two weeks beforehand. That way, no one can question your motives. But do not indicate the bid-due date or give any information in the invitation other than the project name. No point in encouraging anyone to respond in a timely fashion.

3. Discourage those minority contractors who respond.

Never be in for the first call. Wait 48 hours before returning each call. Call during the morning hours when the contractor is least likely to be in. Leave a message and when he calls back, be out again. When you finally speak to him, do not give him any information over the phone. Tell him you have got a set of drawings for him and what that he should come in a take a look for himself.

4. Never lend a set of drawings to minority contractor.

Explain to him many other contractors must use these same drawings. Have him make his ‘take-off’ in your office. This is a common practice and cannot be considered discriminatory. However, it creates real hardships for the minority contractor who usually falls into one of three of the following categories:

He is very slow at taking-off quantities and will require many tedious hours, if not days, in your office completing the take-off.

He normally uses an outside estimating firm to do his pricing. They, of course, will charge him extra if they have to make a trip to your office.

He has to supervise his field operations during the day and normally prepares estimates after working hours or on the weekend.

To make it even more inconvenient, have more than one contractor try to use the same drawings at the same time. Of course, the minority contractor could get his own set of drawings from the public agency, but he may not know this. Do not tell him. Even so, he has a serious dilemma to resolve in trying to decide how much time and money to invest in pursuing this work when he has no idea of his chances for being successful (but, of course, you know what his chances are).

5. Do not be generous with information.

Appear to be helpful but omit vital information wherever possible. Do not mention that the job must be union, or that materials are exempt from sales tax. Do not direct his attention to relevant addends or mention that the bid-due date has been changed.

6. After the bid-opening, rigorously screen those minority contractors who submitted bids.

Reject out-of-hand as incompetent those minority ‘subs’ who submitted bids reasonably high or unreasonably low. Have the remaining minority contractors submit information to you on work history, current work load, union status, supplier and bank relations, etc. Have them explain in detail how they intend to carry the job for the expected two or three months without payment. (Of course, you explain that you do not pay subs until after the owner pays you.) Give deadlines for providing the information. If the deadlines are not met, never send a reminder. Simply drop the contractor from consideration. Investigate as much as possible of the information provided. This may seem like a lot of work, but later you can describe it as part of your active efforts to recruit minority contractors. Look for ways to disqualify or discredit the minority subs. Consider requiring a bond. Now is a wonderful time for rejecting minority contractors after they have spent all this time and money preparing bids, so next time they won’t be so eager.

7. Deal with minority ‘subs’ who are apparently not qualified and who have submitted reasonable prices before the bid-due date.

There should seldom be more than one or two of these. You have one of two options:

Option A: Begin finalizing your subcontractors as usual. Within your hands, you will, as usual, be able to get your ‘subs’ to reduce their prices. Do not include the minority subcontractors in this process. Almost invariably, the final process will be below those previously submitted by the minority ‘subs.’ Have your winning subcontractor bidders send you a new proposal predating it before the bid opening. In this way, you can deny that these post bid-opening negotiations over took place.

Option B: This is the preferred option. After the negotiation process above, invite the minority subs for a ‘last look’ thereby actually giving them preferential treatment. Of course you have your proposed subcontractor give you a reduced price on a subtly reduced scope of work. The minority ‘sub’ is not told about the reduced scope of work. If he meets it with the original scope or work, you will save a bundle and he will get badly hurt on the job. If he refused to meet the ridiculously low price, you will be free to award the contract to your preferred contractor. Only someone very familiar with the drawings, specifications and the trade itself will be able to detect the difference in the scope of work between the low bidder and the minority contractor. Later on, you will make price adjustments to the subcontractor through extra work orders.

8. Award as many contracts as you can as early as possible.

There may be some late bids coming in from minority contractors. Award all such subcontractors as early as possible thereby avoiding a potential controversy. Breaking unilaterally legally-executed contracts can lead to suits. Not even a contract compliance officer can reasonably require you to subject yourself to a lawsuit in behalf of a minority contractor who did not submit his bid on time.

In those cases where a minority contractor submits a bid on a subcontract which has not been awarded, you can reasonably contend, as many contractors do, that to accept quotations after the bid-opening is unfair and inequitable to those parties who submitted their quotations in time and so enabled you to assemble your bid.

9. Award one or more contracts to minority subcontractors.

Make certain these are small and noncritical contracts. Good contracts to consider are debris-removal, hauling, clean-up, security and guard services. Awarding one or two of these minor contracts will confirm for all your ‘good-faith’ in Affirmative Action.

10. Defend your Affirmative Action efforts.

If anyone should question you about your results, point to the following:

Your exhaustive efforts to recruit minority contractors.

The number of minority contractors you invited to bid (unfortunately, most of them did not bother.)

The time and effort you spent in investigating and negotiating with them. (Unfortunately, most of them were unqualified or could not carry the work financially).

Your willingness to permit them a ‘last look.’ (Unfortunately, most of them simply could not meet a competitive price. Of course you are willing to give them a contract at the higher price if the public agency is willing to adjust your contract price…)

In spite of all the difficulties, you were able to award a significant number of dollars to minority contractors. In fact, your results exceed those of the public agency in awarding work to minority contractors. What are their figures anyway?