White-Owned Landscaping Companies Challenge Houston’s Racial Minority Preference in City Contracts
Lawsuit: defendants lost a bid for a city contract after another business received a 10-point bonus because of its minority ownership.
The white owners of two small businesses based in Houston, Texas, are suing to block government policies privileging minority-owned businesses in city contracts. The policies also privilege women-owned businesses. However, the Pacific Legal Foundation (PLF), which represents the businesses, told Legal Insurrection it “made a strategic decision to focus directly on the race-based set-asides.”
Jerry and Theresa Thompson own Landscape Consultants of Texas and Metropolitan Landscape Management. Their companies compete for city landscaping contracts. However, because of the Thompsons’ race, their companies “cannot compete on equal footing with other businesses.”
Landscape Consultants, for example, has a $1.3 million contract with the city with an 11 percent set aside for minority-owned businesses.
This means that Landscape Consultants must take at least $143,000 of work away from its (largely minority) staff, even though they are capable of doing the work, and pay a competitor to do the work—solely because of the race of Landscape Consultants’ owner and the race of its competitor’s owner.
Midtown Management District (MDD), a local government entity, uses a racial set-aside program that takes a different approach. MDD’s program allocates “bonus points to bids” from minority-owned businesses submitting bids for MDD contracts.
MDD evaluates bids across four categories. Of the 100 points possible, MDD automatically awards 10 points to a minority-owned business:
Financial considerations – 50 points
Organizational Qualifications and References – 25 points
Proposed Approach – 15 points
Minority, Women, Disadvantaged Enterprise (MWDBE) – 10 points
In 2022, Metropolitan Landscape submitted a bid for an MDD contract. MDD awarded Metropolitan Landscape 84.96 points across the three criteria for which it qualified, but Metropolitan Landscape lost the bid by 2.7 points because it received 0 points in the MWDBE category, according to the complaint.
A minority-owned business competed for the same MDD contract and, according to the complaint, received 87.68 points, including 10 points in the MWDBE category, securing the contract for that business.
If not for the 10 MWDBE points that were awarded to the successful bidder and not awarded to Metropolitan [Landscape] on the basis of the owner’s race, Metropolitan [Landscape] would have scored higher than all other bidders and secured the $350,000 contract.
The city justifies its program as a remedial measure, pointing to “strong statistical and anecdotal evidence of discrimination” against minorities in the city contracting process. PLF disputes this claim:
[T]the city has relied on so-called “disparity studies” (which purport to measure the rate at which women and various racial groups are under- or over-represented among the companies who contract with the city) to justify the need for racial and sex-based set-asides.
According to the complaint, the city has not published the results of a disparity study since 2006. However, “[t]he City contracted for but never released a 2016 comprehensive disparity study.”
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Good! I hope PLF wins. Houston is a sewer.
Actually an armpit. The armpit of Texas.
I thought that was Austin?
Austin is little lower on the body…
Austin is more the anus of Texas.
In all such cases, be it set-asides for race or sex, college admissions or lucrative contracts, not one single solitary “disadvantaged” person steps forward and says they want to be judged on merit and bid, rather than mooching.
Correct.
If it weren’t for the 10% bump the contract selectee would have a score of 77.68 points compared to the 84.96 points of Metropolitan Landscape. That means that compared to Metropolitan Landscape, the winner would be deficient in the other areas by more than 7 points.
Financial considerations – 50 points
Organizational Qualifications and References – 25 points
Proposed Approach – 15 points
Minority, Women, Disadvantaged Enterprise (MWDBE) – 10 points
If the City feels like it has proof of it’s own culpability in causing specific harm to individuals and businesses within Houston then they should admit their guilt and make restitution to the specific individuals they harmed.
For them to offer generalized remediation based on race, gender, or status which is not targeted to individuals who have been harmed in 2023 is Cray Cray. Maybe, just maybe an argument could be made for such policies to exist in the decade or even decade and half post Civil Rights era but beyond that limit. Heck nearly 60 years beyond the passage of the major Civil Rights legislation? Nope.
There’s never an exit strategy, never an end point where it can be said “We have corrected our error.”
Even then, the remedy should have been limited to those individuals who can show that they were personally harmed by the city’s past discrimination, either directly by losing a bid for a contract that they should have won, or indirectly by not bidding for a contract for they would have have had a good chance of winning if not for the city’s discrimination that made bidding seem pointless. People who weren’t even in the business at the time, and wouldn’t have bid for a city contract even if there had been no discrimination, shouldn’t have been given any advantage.
Methinks that logic could apply to “Reparations” as well?
Depends what kind of reparations you’re talking about.
I think a case can easily be made (though I’m not sure I would support it) for reparations from corporations that owned slaves to those slaves’ traceable heirs; also if a slave owner’s heirs still have identifiable assets from his estate, a case can be made that they should pay reparations to that owner’s slaves’ heirs, up to the value of those assets.
When a person dies his debts are not extinguished, but they can only be collected from his estate. If someone comes along now and proves that he is the heir of someone to whom your great-grandfather owed $1000, you would only have to pay if you still had an asset that came to you from his estate. So if we were to say that each owner owed his former slaves compensation, then that debt would not be extinguished by his death, they would be extinguished only by the dissipation of his assets. Once they’re all gone there’s nothing to collect from. Corporations’ debts, of course, remain alive for as long as they do.
So the case can be made. But I’m not convinced that the owners did owe their former slaves anything. They got their freedom; an argument can be made that that’s all they were entitled to. So I could accept such a reparations law, but I don’t know whether I would support it.
Yep. Specific compensation for those individuals specifically harmed. Perhaps, just maybe, the generalized remediation policies not requiring specific harm be shown for up to a.decade or decade and 1/2 after Civil Rights era would be arguably justified. b/c let’s be honest many minority disadvantaged group members were harmed prior to civil tights act legislation.
But after that 10-15 year period? Nah that’s simply swapping out who’s thumb is on the scale. Either we, as a Nation, don’t want a thumb on the scale and govt picking winners/losers b/c it is a bad idea not to mention unconstitutional or we don’t. I am firmly in the camp of no thumb on the scale in 2023 and beyond b/c merit and individual competence matters most.
So if a law that I have been suffering ill effect from is changed I deserve remediation from my fellow taxpayers for the ill effects? The Draft for instance, as it only screws people for relatively short periods.
As concerns the reparations issue, exactly who gets the reparations? Who determines the winners and losers in and what criteria will that be based on? What proof will be required? What are the chances of that process being completely bastardized by politics and corruption?
There were over 4.9 African immigrants in the US in 2019. Have fun telling them they aren’t African American enough to get paid. If you thought the year of BLM riots were bad…
Then we can talk about what defines an oppressed or harmed minority. How about the Chinese? Irish? Do they get some love for the abuses they suffered under the law?
That’s before we get into the fairness issue of making families of all races who arrived in this country long after slavery ended, or the Civil Rights Act was signed, pay for something they had nothing to do with.
It’s long past time that we cease enabling and rewarding claims of perceived victimhood.
Racial discrimination in city contracting was illegal at the time. So yes, the city owes compensation to those against whom it discriminated. That includes people who never bid for a contract because they knew their skin color meant they had no chance of getting it. But not others.
“So yes, the city owes compensation to those against whom it discriminated.”
Like the white couple who are the subject of this article?
And does someone owe compensation to every other white person who didn’t get the job, into school, a scholarship, a promotion, etc. etc. during this era of national apartheid they call affirmative action?
Most of these supposedly ‘minority owned’ companies are white owned, with a minority acting as a stand-in so the company can get the benefits.
Trans Women are Women.
Even if they still have the male equipment.
Happens all the time
My husband is hispanic, veteran amd it’s not enough to get these city well paying contracts
Female, black, gay, Muslim
Goes along way in Austin
“It says here you are gay, meaning we are to award you advantage points.”
“That is correct.”
“Prove it!”
(Mental slamming-on of brakes…)
Just ask the draft boards from the old days how to do it.
I used to work with a consulting company that was 51% owned by a woman so they could win contracts, get preferential treatment, etc. The woman in question was 80+ years old and her son ran the day to day operations, she just cashed the checks.
Wait. What? The lawsuit seems to imply that anyone who is not a Democrat Protected Class has legal rights in any Democrat controlled polity. We know that is not true from experience, right?
Subotai Bahadur
Q – When did Apartheid become acceptable in the United States?
A – The moment the first Affirmative Action measure was passed.
I have been waiting for a lawsuit like this to drop. It’s the logical fallout from the Harvard lawsuit.
And it’s overdue … these set asides have outlived their merit.
Get ready for a tsunami of this stuff if this holds up. Every major corporation and every government body does it.
The golden ticket used to be an Eskimo owned firm in a state without any – only a small percentage <1 % would be set aside but there was rarely any firms to step in to the breach.
I’ve seen it suggested that all business owners bidding on these contracts should identify as women, and then dare the awarding body to deny them.
Repeating.
Trans women are women.
Even if they have their original equipment.
“According to the complaint, the city has not published the results of a disparity study since 2006. However, “[t]he City contracted for but never released a 2016 comprehensive disparity study.”
$20 on the table that the 2016 study was contracted to a minority consulting firm.
Instead of a law suit, the male owner applies for a woman-owned business set-aside. Then dare those bureaucrats to say he’s not a woman.
Kill two woke birds with one stone.
Brilliant.
When Intersectionality Street meets Intersectionality Blvd. it gets confusing.
Good! I hope they win a LOT of money.
There are minority members who are worth hundreds of millions of dollars because they have the minority brownie points.
MWDBE was the initial cancer that eventually metastasized into what we now call WOKE.
This patently racist, noxious and unconstitutional nonsense has been going on at DoD and other federal departments/agencies, for a long time. I’m amazed that federal contractual awards based on an assessment of a particular company’s owners’/partners’ race, sex, sexual orientation, etc., haven’t already been struck down as patently unconstitutional.
And, in the private sector, there are a slew of venture capital firms and more pedestrian businesses (e.g., Trader Joe’s and Giant Supermarkets) that in the aftermath of George Floyd’s death, loudly boast about their investing in “black-owned” start-ups and buying goods from black-owned suppliers.
See Adarand v Peña. Racial preferences in government contracting are lawful, but only if they survive strict scrutiny.
I’ve tried to look up what happened to Adarand on remand; did they end up getting the contract? Or compensation for having lost it? Or did the trial court find that strict scrutiny was satisfied? I can’t find an answer.
I appreciate the case reference. I don’t agree with the holding. I think race preferences should be deemed unconstitutional across the board, in any setting and in any context.
Also, I’d have thought that the recent SCOTUS case put to rest the notion that there is such a thing as allegedly benign, “remedial” race discrimination in school admissions, job hiring and contract awarding. If a school, employer or federal or state entity is giving preference to an applicant or a company based upon his/her/the owners’ race, someone else is necessarily being excluded.
No, it didn’t. The decision explicitly said that remedial preferences are still lawful. But no university now even pretends that its preferences are remedial.
Sarcastically, I would ask: Wouldn’t it be cheaper and easier to just appoint a female family member to ownership, or better yet the owner “identify” as a woman in order to gain favored status?
This happens all the time. Better still if you have as the ‘front’ a woman of color who is also a Veteran or has a disability or both. The federal contracting system has the same sorts set asides. Often there are ‘front’ companies awarded a % of the contract who then subcontract that % back to the big companies just taking a skim of the total.
“”Jerry and Theresa Thompson own Landscape Consultants of Texas and Metropolitan Landscape Management.””
Apparently it didn’t work in this case, given that the co-owner is a woman.
Grass shouldn’t be mowed. Such activity escalates the climate emergency.
I agree. That’s why I leave it to the deer. They’re just as efficient and they only cost a little corn.
You give them your grass AND your corn?
Man, those deer saw you coming.
My Grandfather owned a landscaping business in Tucson and he was half Native American. I worked with him from the time I was 4-13 from 1961 in the summers due to the smog bothering me in Los Angeles. After I was 13 I was better and I handled breathing and working around home. There was never issues because part of the family was part Native American and the other part was White. My Grandfather later sold the business as he was to old to run it.
Having government making laws to give preferential treatment to business for any reason is wrong. The only reason government should make any laws is tariffs for country to country money equalization.
Houston black mayor is a documented RACIST who blames all his problems in life on white people.
WOKE TRASH