122 F.3d 895 (11th Cir. 1997), 96-5274, Engineering Contractors Ass'n of South Florida Inc. v. Metropolitan Dade County

Docket Nº:96-5274.
Citation:122 F.3d 895
Party Name:ENGINEERING CONTRACTORS ASSOCIATION OF SOUTH FLORIDA INC., Associated General Contractors of America, South Florida Chapter, Inc., Gold Coast Associated Builders and Contractors, Inc., Construction Association of Florida, Inc., Underground Contractors Association of South Florida, Inc., Air Conditioning and Refrigeration Association, Inc., Plaintif
Case Date:September 02, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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122 F.3d 895 (11th Cir. 1997)


Associated General Contractors of America, South Florida

Chapter, Inc., Gold Coast Associated Builders and

Contractors, Inc., Construction Association of Florida,

Inc., Underground Contractors Association of South Florida,

Inc., Air Conditioning and Refrigeration Association, Inc.,



METROPOLITAN DADE COUNTY, Joaquin Avino, County Manager of

Metropolitan Dade County, Betty Ferguson, James Burke,

Arthur E. Teel, Jr., Sherman S. Winn, Bruce Kaplan, Pedro

Reboredo, Maurice Ferre, Larry Hawkins, Dennis Moss, Javier

Souto, Miguel De La Portilla, Alexander Penelas, Natacha

Millan, Individually and in their official capacities as

members of the Board of County Commissioners, Defendants-Appellants,

Black Business Association, Inc., Allied Minority

Contractors Association, Inc., National

Association for the Advancement of

Colored People, Miami Dade





No. 96-5274.

United States Court of Appeals, Eleventh Circuit

September 2, 1997

As Amended Oct. 8, 1997.

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Robert A. Ginsburg, Dade County Attorney, R.A. Cuevas, Jr., Assistant County Attorney, Miami, FL, for Metro Dade County, et al.

Karen H. Curtis, Don L. Horn, Gallwey, Gillman, Curtis, Vento & Horn, P.A., Miami, FL, for intervenors Black Business Association and NAACP.

Thomas F. Pepe, Pepe & Nemire, P.A., Coral Gables, FL, for intervenors Allied Contractors.

W. Henry Parkman, Griffin, Cochrane & Marshall, Herbert P. Schlanger, Atlanta, GA, for Plaintiffs-Appellees.

Appeals from the United States District Court for the Southern District of Florida.

Before CARNES, Circuit Judge, and FAY and CAMPBELL [*], Senior Circuit Judges.

CARNES, Circuit Judge:

This appeal involves an Equal Protection Clause challenge to three substantially identical affirmative action programs administered by Dade County, Florida. Those programs provide for the use of race-, ethnicity-, and gender-conscious measures in awarding County construction projects. Specifically, the programs establish preferences for construction enterprises owned and controlled by blacks, Hispanics, or women. The district court declared all three programs unconstitutional and permanently enjoined their operation. See Engineering Contractors Ass'n v. Metropolitan Dade County, 943 F.Supp. 1546 (S.D.Fla.1996). We affirm.


The following summary of undisputed facts, as well as the procedural history of this case, is drawn primarily from the district court's thorough opinion, see 943 F.Supp. at 1551-53.


    Three affirmative action programs enacted by the Dade County Board of Commissioners are at issue in this appeal: (1) the Black Business Enterprise ("BBE") program, enacted in 1982 and most recently amended in 1994; (2) the Hispanic Business Enterprise ("HBE") program, enacted in 1994; and (3) the Women Business Enterprise ("WBE") program, enacted in 1994. For the sake of convenience, we adhere to the district court's convention of referring to the programs collectively as the "MWBE" (Minority & Women Business Enterprise) programs.

    To qualify to participate in one of the MWBE programs, a business must be owned and controlled by one or more black, Hispanic, or female individuals, and it must have an actual place of business in Dade County. MWBE joint ventures must have at least one member that is certified under one of the three MWBE programs. Additionally, each MWBE participant must demonstrate that it does not exceed the size limits for "small business concerns" as defined by the Small Business Administration of the United States Department of Commerce. However, an MWBE participant that exceeds the size limit may retain its certification if it demonstrates that "it continues to experience the kinds of racial [or gender] discrimination addressed by [the programs]." Metropolitan Dade County Code § 2-8.2(3)(e).

    The MWBE programs apply to certain classes of County contracts for which "participation goals" have been set. This case concerns only construction contracts, which

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    means that only the following three Standard Industry Classification ("SIC") classes of County contracts are involved:

    (1) SIC 15: General Building Construction;

    (2) SIC 16: Heavy Construction other than Building Construction;

    (3) SIC 17: Specialty Trade Construction (including electrical, plumbing, heating, ventilation, and air conditioning).

    For the foregoing classes of contracts, the County has set participation goals of 15% for BBEs, 19% for HBEs, and 11% for WBEs. The participation goals apply to all construction contracts in excess of $25,000 that are funded in whole or in part by the County. The County is required to make every reasonable effort to achieve the participation goals, and may use any of the following five "contract measures" to do so:

    (1) Set Asides--Under this measure a contract is set aside for bidding solely among MWBEs. In general, the County may use the set-aside measure if there are at least three MWBE businesses available to perform the contract. However, the County also may waive competitive bidding if there are at least two MWBEs available, if neither of those MWBEs has been awarded a County contract for like goods or services in the last three years, and a price analysis is done to ensure the price is competitive.

    (2) Subcontractor Goals--This measure requires a prime contractor to subcontract a certain percentage of work to MWBEs. The percentage is determined on a case-by-case basis. A waiver is available if the prime contractor can demonstrate that MWBEs are not available to do the work at a competitive price. However, the inability of an MWBE to obtain bonding is not considered grounds for a waiver.

    (3) Project Goals--With this measure, the County creates a pool of MWBE subcontractors from which it selects firms for specified types of work under County contracts.

    (4) Bid Preferences--This measure artificially "reduces" an MWBE bid price by as much as ten percent for purposes of determining the lowest bid. The actual price the County pays for the work is unaffected by this "reduction."

    (5) Selection Factors--This measure is similar to a bid preference, but operates on factors other than price. For instance, when bid evaluation procedures assign weights to various factors, MWBE performance on those factors may be boosted by up to 10%.

    Once a contract is identified as being covered by a participation goal, it is submitted to a review committee for determination of whether a contract measure should be applied. The County Commission makes the final determination on that issue, and its decision is appealable to the County Manager. The County Manager's decision is final, unless the County Commission exercises its discretion to review and override it.

    Annually, the MWBE programs are reviewed for their efficacy. Every five years, when the "Survey of Minority-Owned Business Enterprises" is published by the Census Bureau, the County Commission must decide whether to continue the programs.


    The Dade County BBE program has been challenged before. In South Florida Chapter of Associated General Contractors v. Metropolitan Dade County, 723 F.2d 846 (11th Cir.1984), this Court upheld the program in its entirety. We did so applying the standard enunciated by Chief Justice Burger in the principal opinion in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), which was neither strict scrutiny nor any other traditional standard of equal protection review.

    Five years after we upheld Dade County's BBE program, the Supreme Court pulled the props out from under our decision by abandoning the Fullilove standard insofar as state and local race-conscious remedial programs are concerned. Such programs must satisfy the exacting strict scrutiny standard, the Court held in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-95, 109 S.Ct. 706, 721-22, 102 L.Ed.2d 854 (1989) (four-

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    member plurality opinion); accord id. at 520, 109 S.Ct. at 735-36 (Scalia, J., concurring) (agreeing that "strict scrutiny must be applied to all governmental classifications by race"). The Croson decision prompted several non-minority plaintiffs to bring a second constitutional challenge to Dade County's BBE program. That case was tried in federal district court in July 1992, but before the court rendered a final judgment the parties reached a settlement and stipulated to a dismissal with prejudice. That abortive litigation is not without effect on the present case, however, because by stipulation, the evidence from that settled case has been made a part of the record in this case.

    This case was filed in September 1994 by six trade associations whose members regularly perform work, either as prime contractors or subcontractors, on County projects. The complaint named only the County and certain related parties as defendants. However, three entities have intervened as party defendants: (1) the Black Business Association, Inc.; (2) the Allied Minority Contractors Association, Inc.; and (3) the Miami Dade Branch of the National Association for the Advancement of Colored People. The plaintiffs challenge the County's MWBE programs only as they apply to the construction industry, i.e., only with respect to SIC 15, 16, and 17.

    The district court held a...

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