Hire-And-Seek

To City Councilor Jack Henderson, the results of a 2010 disparity study about city contracting still spotlight a serious problem.

"It showed less than 1 percent of all the funding that was spent on city contracting went to African Americans. That's totally unacceptable," Henderson said.

He was a driving force in getting the study done, and it spurred change in the way the city works with contractors.

Now, contract language encourages primary contractors to hire as sub-contractors businesses owned by minorities or women (sometimes known in government parlance as M/FBEs), as well as businesses certified by the city's Building Resources in Developing and Growing Enterprises program (BRIDGE DBEs).

"Contractors are required to sign affidavits agreeing to make good faith efforts toward utilization of a predetermined percentage of BRIDGE DBEs and M/FBEs during the course of the contracts," according to a written statement from city spokeswoman Michelle Allen. If they don't make such efforts, they can potentially receive less money from the city.

Henderson said he wants follow-up. "I'm going to be putting it on the agenda for the city to produce to the council what the utilization numbers ... in the last 12 months, what they've been," he said.

But this year, a voter-approved amendment to the state's constitution would seem to be at odds with the city's affidavit policy.

In November, Oklahomans approved State Question 759, which "does not allow affirmative action programs," amending the state's constitution to enact the ban. The question described affirmative action as "preferred treatment based on race, color, or gender," and explicitly stated that the change would affect contracting, employment, and education.

Henderson said he doesn't think State Question 759 should affect efforts to broaden the group of contractors receiving city work.

"I have every reason to believe we're on solid ground moving forward, not backward. What was done at the state level has moved backward," Henderson said.

Michael Smith, interim director of the city's human rights department, also said he doesn't think the city's contracting policy has to change.

"I've not been told it's going to affect us one bit," Smith said.

An outside observer has some doubt, however. Kate Richey, a policy analyst with the Oklahoma Policy Institute -- a group that sharply critiqued the affirmative action ban before the election -- said any explicit consideration of race in contracting would be prohibited in most cases at the city level.

A city still might "do things to encourage, I suppose, outreach or more bid submissions by minority contractors," she said. But -- apart from a few exceptions, notably including some federally-funded projects which might have their own stipulations -- the change does not allow a city program or policy that "even outright encourages that those bids or contracts be awarded to anyone based on race as a factor," Richey said.

Derek Gates Dylan Spaulding

The state question on the ballot listed three exceptions: "when gender is a bonafide qualification," to satisfy "existing court orders and consent decrees," and when affirmative action is "needed to keep or obtain federal funds."

In one way, at least, the city's BRIDGE program would seem to be able to stand up to new scrutiny after the change to the constitution.

It was formed in 2007, basically taking over from programs begun in the 1980s that explicitly sought to help minority and women-owned businesses, according to Terri Gateward, business development coordinator in the human rights department.

Focused on helping "developing businesses," the application for BRIDGE certification asks about the race, ethnicity, and gender of the business owner. But the application specifically states that such information does not affect how a business is considered for the program.

For contractors, it's tough to know the answer when asked how the affirmative action ban might affect their business.

"I'm hoping that it doesn't have an impact, and that the city does try to continue their work with underutilized businesses of all races," said Derek Gates, owner of D.W. Gates Engineering.

His business is BRIDGE certified, and he said he hasn't been notified of any changes to the program, which he said provides value to his business.

The BRIDGE program has certified 168 businesses enrolled in the program, Gateward said, but only about seven aren't owned by women or minorities.

Gates said he had some concern about the program. "My guess -- and this is purely my guess -- is that somebody will challenge it, and that it's going to be the key: Does the city defend the program?" said Gates, who is African American.

Vicente Ruiz, owner of VR Electric, is a board member for the Greater Tulsa Hispanic Chamber of Commerce.

He said he's tried to get city work, and currently is a subcontractor with large construction firm Manhattan Construction on a city project.

But he expressed doubt when told about the city's policy requiring primary contractors to make good faith efforts to utilize minority-owned businesses.

"I would say not all of the companies are doing that," Ruiz said.

Smith has served as interim director of the city's human rights department since Oct. 1. No search has been initiated for a new department leader since the firing of Lana Turner-Addison on Aug. 31. According to Allen, the city wants results of a compensation and classification study to be complete before initiating the search.

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