Transportation Secretary Drew Lewis is giving his Cabinet colleagues a lesson on how quickly a regulation designed to ensure minority business participation in government contracts can be turned around.
The rule requires state highway departments, airport authorities and other recipients of Department of Transportation funds to establish goals for how much of their DOT money will go to minority businesses. Then bidders for each contract must list a specific set of minority subcontractors they will use.
In some cases, contracts have been awarded not to the lowest bidder, but to someone who had met the minority subcontractor goal.
According to one DOT official, when one or more bidders for a particular contract have said they could meet the minority goal and others have indicated they could not, the latter bidders are thrown out of contention.
Needless to say, the state highway departments, airport authorities and Association of General Contractors among others have been up in arms about this rule. In the year it has been in effect, no less than 17 lawsuits have been filed against it.
Enter the Reagan administration and Lewis.
A decision was made to go through the traditional, several-months-long, review of the entire minority business approach of DOT rules, but meanwhile, to quickly rewrite the contract award provision.
Speed was a goal because of the pending lawsuits and, according to a notice in the March 12, Federal Register (page 16282), because the contract award provision had been "criticized as establishing an illegal quota system, conflicting with the principle of awarding contracts to the lowest bidder and unnecessarily raising costs."
The new rule, published March 13, eliminates the idea that if one contractor could meet the minority goal, the others had to. Instead it substitutes the notion that, as the DOT notice put it, the firm that won a contract had only to show it had made "a good, hard try to meet the [minority] goals," even though it may have failed.
There was some discussion about wiping out the old rule and putting the new language in effect immediately. But fearing that precedent, DOT lawyers decided instead to allow the public a two-week comment period (instead of the normal 60 days) before the interim rule becomes final.
"A couple of weeks of comment never killed anybody" was the way one participant described the decision.