Response to Boston’s Executive Order on Minority Contractors
On the heels of the federal civil rights complaint filed with the Department of Justice, Mayor Walsh released yet another vague executive order that is insufficient to address the racial crisis surrounding the City of Boston’s public contracting.
In light of the disparity study and the civil rights complaint, the latest executive order acknowledges what is undeniable: the City “has a compelling governmental interest and a strong basis in evidence to remedy the past and present effects of discrimination, disparities, obstacles, and barriers.” It also concedes that race neutral measures have been “insufficient.”
However, it leaves much of the necessary creation, implementation, and enforcement uncertain. The executive order is much too vague to address the entrenched problem. This ongoing crisis requires deliberate, intentional, and concrete action.
To fix this problem, the City cannot act unilaterally. The City should have convened community-based groups and MBEs to fully understand the scope and scale of the racial crisis, and to affirmatively solicit recommendations and suggestions grounded in the experience of MBEs that have been injured and harmed by the City’s discriminatory practices.
Federal intervention is still needed, particularly to ensure that the process is community-centered and genuinely focused on the engagement and empowerment of the MBE community.
For years, community groups have provided meaningful suggestions that the City has — and continues — to ignore. The timelines set forth in the executive order are not concrete. Altogether, this adds insult to injury, and compounds the harm to MBEs.
- Public contracting goals must be aggressive and actionable. As we have seen from the Walsh Administration’s previous executive orders, it’s not enough to set aspirational goals; we need enforcement and accountability. The City’s department heads need to be held accountable for meeting prime contracting goals. There should be a much more aggressive MBE goal, particularly in light of the remediation we need to address the City’s egregious track record of excluding MBEs from equal contracting opportunity for years.
- All prime contract bids where there are subcontracting opportunities must have clear and specific MBE subcontracting goals. If prime contractors don’t meet those MBE goals — and don’t show good faith outreach efforts — the bids must be rejected. Other cities that have implemented and enforced this practice include New York City, Philadelphia, Memphis, Charlotte, Houston, Baltimore, Portland, Seattle, and Denver.
- MBE inclusion must be monitored by dedicated contract compliance staff with real enforcement power. Other cities, including Philadelphia, San Francisco, and Houston, have robust staff. Boston must move in this direction.
- Contract compliance staff must have the power and authority to require departments to take affirmative steps to break down barriers to equal opportunity — and to prevent contracts from going forward if these steps are not taken. This includes breaking up excessively-large contracts into smaller contracts and removing overly-stringent requirements from bid specifications.
These action steps are aligned with the recommendations of the City’s own disparity study.
The key here is ongoing monitoring, enforcement, and accountability coupled with the capacity to reject contracts that don’t include available MBEs. But none of these issues are meaningfully addressed in the latest executive order.
Lawyers for Civil Rights will continue pressing forward the federal civil rights complaint filed with the Department of Justice and the Department of Transportation in partnership with the Black Economic Council of Massachusetts (BECMA), the Greater Boston Latino Network (GBLN), Amplify Latinx, community partners, and Boston’s MBE community.
Click here for the federal civil rights complaint.
Click here for the disparity study.