Department of Defense Procurement Practices after Adarand : What Lies Ahead for the Largest Purchase of Goods and Services and its Base of Small Disadvantaged Business Contractors

Despite close to 95% of prime contract dollars being awarded to non-minority businesses, majority contractors believe that affirmative action in the form of federal procurement minority set-asides is “discrimination for its own sake.” Seemingly adopting this belief, the Supreme Court in Adarand Constructors, Inc. v. Pena, struck a blow to the minority contracting community by raising the standard of review in cases challenging the constitutionality of federal affirmative action programs to the highest level of review – strict scrutiny. As a result of the Supreme Court's decision in Adarand, the Department of Defense (DoD) has been compelled to quickly review its own affirmative action programs and determine the best course of action in light of the Supreme Court's pronouncement that federal race-conscious affirmative action programs be reviewed under strict scrutiny. Part II of this essay begins with a brief analysis of the Supreme Court's decisions in Adarand and the legislative history of DoD's most successful affirmative action procurement program, which is often referred to as the “1207 program.” Part III reviews the post-Adarand effect on the program, highlighting legal challenges to DoD's race-based set-asides. Part IV proposes the type of evidence that may be used by DoD to support the constitutionality of its affirmative action programs and suggests alternative programs which will ensure that small disadvantaged businesses receive meaningful opportunities to compete for defense contract dollars