On May 16, the U.S. Court of Appeals for the Ninth Circuit reaffirmed that that the states within that circuit cannot lawfully impose contract goals for DBE participation in federal-aid highway projects unless, and until, they “establish the presence of discrimination within [their] transportation contracting industr[ies].”
In this case, Mountain West Holding Company v. State of Montana, the court then held that the State of Montana had not met that burden, explaining that “a decline in DBE participation” over a six-year period when the state ran a race-neutral program was “not necessarily evidence of discrimination against DBEs.”  The court also observed that the state had failed to account for differences in the “size, age [or] geography” of its DBE and other construction companies, or why it was “appropriate” to compare “the proportion of available subcontractors to the proportion of prime contract dollars awarded.”  [Emphasis in original.]
In May of 2015, AGC of America and its Montana chapter had jointly filed a friend-of-the-court brief in the Ninth Circuit in support of the contractor’s position.
For more information, contact Mike Kennedy at kennedym@agc.org or (703) 837-5335.