Sixth Circuit Confirms Ohio’s Construction Set-Aside Program Is Unconstitutional
Kegler Brown Construction Newsletter August 1, 2000
AGC previously filed suit and obtained an order from the trial court, U.S. District Judge Graham, that Ohio's minority ("MBE") set-aside plan for construction and public works was unconstitutional and therefore unenforceable. As a result, Ohio, through the Department of Administrative Services ("DAS"), had ceased enforcing the set-aside law while the case was pending.
The U.S. Sixth Circuit Court of Appeals, based out of Cincinnati, has affirmed that decision and ruled that the MBE requirements for state construction contracting are unconstitutional in that mere statistical disparities between the percentage of minority businesses and the percentage of state contracts are not enough to justify such an MBE set-aside plan. AGC v. Drabik, Case No. 98-4393 (decided June 1, 2000, Sixth Circuit).
The State will now have to decide whether to initiate a detailed study to support a new set-aside plan, adopt a race neutral disadvantaged business type plan or abandon the concept altogether.