Naked City

It would be nice if the turn of the millennium initiated a new era of peace, love, and equity in the awarding of city contracts to minority- and women-owned businesses. But just in case it doesn't, look for some substantive discussions on the future of affirmative action in Austin city government come the new year. The council is currently considering ways to strengthen the city's Minority- and Women-owned Business Enterprise (M/WBE) program. One of the first orders of business, according to Council Member Gus Garcia's office, will be the commissioning of a new disparity study that delineates the hardships these firms face in getting their share of the abundant contracting opportunities afforded by the boom.

In this, the early stage of the proposed rewrite, council members are dusting off their lists of issues and changes they'd like to see in the program, and in executive session, Colette Holt & Associates, of Kansas City, Missouri (who worked on the city's original disparity study), are presumed to be discussing with the council the likely legality of said revisions. On Dec. 16, the council added $70,000 to its contract with Holt to work on the rewrite. The firm has already gotten $35,000, bringing the total tab for the legal work to $105,000. The lawyers will come to the council some time in January with a list of recommendations.

The movement is being spearheaded by Garcia, who said that over the last couple of years, he has seen numerous instances where there have been loopholes in the ordinance. In lieu of the required M/WBE compliance plan, for example, contractors may declare all that work will be self-performed, and that there will therefore be no opportunities for M/WBE subcontracting, but then end up subcontracting portions of the work anyway -- effectively a pass-through of city money made to avoid compliance with the ordinance.

Garcia also wants to increase the standards that companies have to meet in order to qualify as having made "good-faith efforts" to comply with the ordinance -- which is the only standard companies have to meet since there is no enforcement provision. Another practice Garcia is seeking to eliminate is known as "bid shopping," whereby a contractor looking for subs will say to the firm it wants to hire, "This MBE gave me this bid; can you beat it?" Finally, Garcia wants to introduce M/WBE accountability into the matter of ground leases of city property, which as such are not covered by the ordinance.

Which brings us to CSC, one of the biggest construction projects the city is currently involved with, which was executed through a ground lease with the city and therefore is not subject to the city ordinance. At the Dec. 14 meeting of the council's M/WBE subcommittee, Assistant City Manager Toby Futrell laid out CSC's action plan for including minority and women contractors in their building project. The plan commits CSC to be nondiscriminatory in selecting contractors and consultants, "consistent with intent and spirit" of city ordinance.

But Garcia wants more enforceability than that. (Indeed, the wording of CSC's M/WBE commitment was a point of contention for Garcia at the April 1, 1999, meeting when the council approved the CSC deal; he now contends that his wish that CSC face some accountability in minority contracting has not been carried out.)

For over a year, Garcia's office has been facilitating monthly meetings between Futrell, the heads of departments she oversees, and minority contractors' groups, in order to give everyone a "better feel for each other's perspectives," according to Garcia's aide Paul Saldaña. The meetings are aimed at preventing contract disputes from arising, as well as giving minority contractors "a heads-up on major projects" that the city is undertaking. But minority contractor groups have reportedly been less than impressed with CSC's efforts. "There hasn't been any attempt to start building those relationships" with the contractors, said Saldaña.

According to Frank Fuentes, who represents the Hispanic Contractors Association, the council has a good record of supporting contracting opportunities for minority- and women-owned business enterprises. "The Hispanic contractors have been successful in obtaining contracting opportunities with the city because of the ordinance, but also because of the way the council has been," Fuentes said. Fuentes said that since future City Councils might not be as friendly to the goals of the contracting ordinance, it would be advantageous to strengthen it while there's time. "As in anything, there's always a way to make it better," he said.