6.30.040 Factual predicate | WSSC Code of Regulations

6.30.040 Factual predicate.

(1) Periodically, since introducing its first MBE program, WSSC has undertaken extensive fact-finding studies, data gathering efforts, and public hearings to investigate whether there is sufficiently strong evidence of discrimination to allow the use of race conscious remedies.

(2) The most recent disparity study was distributed to key stakeholders and media outlets, and was made available to the public by posting on the WSSC public internet site, www.wsscwater.com. The most recent disparity study data, analyses and findings, together with all other relevant information, have been adopted by the Commission and constitute the factual predicate for this chapter.

(1) The Commission finds the following:

(i) The Commission wishes to provide equal access to business formation and business growth opportunities;

(ii) The elimination of discrimination against minority- and women-owned businesses is of paramount importance to the future welfare of the Commission and the area it serves;

(iii) The Commission has procured, received, carefully reviewed and accepted the most recent disparity study published on November 16, 2022, and finds that the study provides a strong basis in evidence demonstrating persistent discrimination against minority- and women-owned businesses;

(2) Based on its review of the study, the Commission finds:

(i) There are substantial and statistically significant adverse disparities that are consistent with discrimination against minorities and nonminority women in wages, firm formation, entrepreneurial earnings, access to capital in the private section in the same geographical markets and industry categories in which the Commission does business;

(ii) The Commission would become a passive participant in private sector racial and gender discrimination if it ceased or curtailed its remedial efforts, including the operation of the minority business enterprise program;

(iii) There are substantial and statistically significant adverse disparities that are consistent with discrimination against minorities and nonminority women in Commission procurement;

(iv) There are substantial and statistically significant adverse disparities that are consistent with discrimination against businesses owned by minorities and non-minority women in most major industry categories of Commission procurement;

(v) There is ample evidence that discrimination in the private sector has depressed firm formation and firm growth among minority and nonminority women entrepreneurs; and

(vi) There is powerful and persuasive qualitative evidence, both statistical and anecdotal, of discrimination against minority and nonminority women business owners in both the public and private sectors.

(3) The Commission finds that:

(i) As a result of ongoing discrimination, and the present-day effects of past discrimination, minority- and women-owned businesses combined continue to be very significantly underutilized relative to their availability to perform work in the overwhelming majority of the procurement categories in which the Commission does business;

(ii) Minority prime contractors also are subject to discrimination and confront especially daunting barriers in attempting to compete with very large and long-established nonminority companies;

(iii) Despite the fact that the Commission has employed, and continues to employ, numerous and robust race-neutral remedies, including aggressive outreach and advertising, training and education, small, local business programs, and other efforts, there is a strong basis in evidence that discrimination persists even in public sector procurement where these efforts have been employed;

(iv) Notwithstanding the levels of participation achieved when race-conscious measures are used, in the absence of minority business enterprise participation goals, there would be a substantial decrease in the overall utilization of minority- and women-owned businesses;

(v) This chapter ensures that race-neutral efforts will be used to the maximum extent feasible and that race-conscious measures will be used only where necessary to eliminate discrimination that was not alleviated by race-neutral efforts;

(vi) This chapter continues and enhances efforts to ensure that the Commission limits the burden on nonminority businesses as much as possible by ensuring that all goals are developed using the best available data and that waivers are available whenever contractors make good faith efforts;

(vii) This chapter ensures that the operation of the minority business enterprise program is consistent with the study data and narrowly tailored to the compelling interests of the Commission; and

(viii) Commission efforts to support the development of competitively viable minority- and women-owned business enterprises will assist in reducing discrimination and creating jobs for all residents of the Commission’s service area. (Res. 2023-2325; REG-PROC-SD-2017-004 § IV)