Mary M. Dickens Johnson
Do state and local governments have to justify preferences in procurement? The U.S. Supreme Court in its landmark 1989 decision, City of Richmond v. Croson said yes. The federal system has a different system of founding, reporting and justification. Federal government rules do not equal state/local government rules. State/local agencies must do disparity study prior to establishing preferences.
For those working in federal procurement since the Competition in Contracting Act (CICA), circa 1984; the existence of preference programs, particularly around ethnicity, have been a “given.” Let’s consider a different environment, namely the context of state and local governments. Should these entities follow the same rules as the federal mandates? This question has been tried, challenged and appealed up to the Supreme Court for judicial ruling.
At the basis of the policy-making foundation theory is the concept of “founding theory”. This suggests that the origins of the establishment of the organization bear primary interpretation of what is legitimate and what is not. (In social science terms, the concept of “framing” is similar in terms of setting an environment or tone for introducing a person or idea) As it turns out, ethnic preferences in the federal system are legislated by U.S. Congress, and thereby legitimized. However, state and local governments make policies for their jurisdiction unique to their governing body officials. Thereby, the Supreme Court has ruled that something called “a disparity study” must be conducted (and updated periodically) to justify the imposition of ethnic preferences in each unique jurisdiction.
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