§ 136-28.4. (Expires August 31, 2010) State policy concerning participation by disadvantaged minority-owned and women-owned businesses in highway contracts.
§ 136‑28.4. (ExpiresAugust 31, 2010) State policy concerning participation by disadvantagedminority‑owned and women‑owned businesses in highway contracts.
(a) It is the policy ofthis State, based on a compelling governmental interest, to encourage and promoteparticipation by disadvantaged minority‑owned and women‑ownedbusinesses in contracts let by the Department pursuant to this Chapter for theplanning, design, preconstruction, construction, alteration, or maintenance ofState highways, roads, streets, or bridges and in the procurement of materialsfor these projects. All State agencies, institutions, and politicalsubdivisions shall cooperate with the Department of Transportation and amongthemselves in all efforts to conduct outreach and to encourage and promote theuse of disadvantaged minority‑owned and women‑owned businesses inthese contracts.
(b) At least every fiveyears, the Department shall conduct a study on the availability and utilizationof disadvantaged minority‑owned and women‑owned businessenterprises and examine relevant evidence of the effects of race‑based orgender‑based discrimination upon the utilization of such businessenterprises in contracts for planning, design, preconstruction, construction,alteration, or maintenance of State highways, roads, streets, or bridges and inthe procurement of materials for these projects. Should the study show a strongbasis in evidence of ongoing effects of past or present discrimination thatprevents or limits disadvantaged minority‑owned and women‑ownedbusinesses from participating in the above contracts at a level which wouldhave existed absent such discrimination, such evidence shall constitute a basisfor the State's continued compelling governmental interest in remedying suchrace and gender discrimination in highway contracting. Under suchcircumstances, the Department shall, in conformity with State and federal law,adopt by rule and contract provisions a specific program to remedy suchdiscrimination. This specific program shall, to the extent reasonablypracticable, address each barrier identified in such study that adverselyaffects contract participation by disadvantaged minority‑owned and women‑ownedbusinesses.
(b1) Based upon thefindings of the Department's Second Generation Disparity Study completed in2004, hereinafter referred to as "Study", the program design shall,to the extent reasonably practicable, incorporate narrowly tailored remediesidentified in the Study, and the Department shall implement a comprehensiveantidiscrimination enforcement policy. As appropriate, the program design shallbe modified by rules adopted by the Department that are consistent withfindings made in the Study and in subsequent studies conducted in accordancewith subsection (b) of this section. As part of this program, the Departmentshall review its budget and establish annual aspirational goals, not mandatorygoals, in percentages, for the overall participation in contracts bydisadvantaged minority‑owned and women‑owned businesses. These annualaspirational goals for disadvantaged minority‑owned and women‑ownedbusinesses shall be established consistent with methodology specified in theStudy, and they shall not be applied rigidly on specific contracts or projects.Instead, the Department shall establish contract‑specific goals orproject‑specific goals for the participation of such firms in a mannerconsistent with availability of disadvantaged minority‑owned and women‑ownedbusinesses, as appropriately defined by its most recent Study, for eachdisadvantaged minority‑owned and women‑owned business category thathas demonstrated significant disparity in contract utilization. Nothing in thissection shall authorize the use of quotas. Any program implemented as a resultof the Study conducted in accordance with this section shall be narrowlytailored to eliminate the effects of historical and continuing discriminationand its impacts on such disadvantaged minority‑owned and women‑ownedbusinesses without any undue burden on other contractors. The Department shallgive equal opportunity for contracts it lets without regard to race, religion,color, creed, national origin, sex, age, or handicapping condition, as definedin G.S. 168A‑3, to all contractors and businesses otherwise qualified.
(c) The followingdefinitions apply in this section:
(1) "Disadvantagedbusiness" has the same meaning as "disadvantaged businessenterprise" in 49 C.F.R. § 26.5 or any subsequently promulgatedreplacement regulation.
(2) "Minority"includes only those racial or ethnicity classifications identified by a studyconducted in accordance with this section that have been subjected todiscrimination in the relevant marketplace and that have been adverselyaffected in their ability to obtain contracts with the Department.
(d) The Departmentshall report semiannually to the Joint Legislative Transportation OversightCommittee on the utilization of disadvantaged minority‑owned businessesand women‑owned businesses and any program adopted to promote contractingopportunities for those businesses. Following each study of availability andutilization, the Department shall report to the Joint LegislativeTransportation Oversight Committee on the results of the study for the purposeof determining whether the provisions of this section should continue in forceand effect.
(e) This sectionexpires August 31, 2010. (1983, c. 692, s. 3; 1989, c. 692, s. 1.5; 1989 (Reg.Sess., 1990), c. 1066, s. 143(a); 2006‑261, s. 4; 2009‑266, s. 3.)