North Carolina § 136-28 - 4. (Expires August 31, 2022) State policy concerning participation by disadvantaged minority-owned and women-owned businesses in transportation contracts.

§ 136-28. 4. (Expires August 31, 2022) State policy concerning participation by disadvantaged minority-owned and women-owned businesses in transportation contracts.

It is the policy of this State, based on a compelling governmental interest, to encourage and promote participation by disadvantaged minority-owned and women-owned businesses in contracts let by the Department pursuant to this Chapter for the planning, design, preconstruction, construction, alteration, or maintenance of State transportation infrastructure and in the procurement of materials for these projects. All State agencies, institutions, and political subdivisions shall cooperate with the Department of Transportation and among themselves in all efforts to conduct outreach and to encourage and promote the use of disadvantaged minority-owned and women-owned businesses in these contracts. At least every five years, the Department shall conduct a study on the availability and utilization of disadvantaged minority-owned and women-owned business enterprises and examine relevant evidence of the effects of race-based or gender-based discrimination upon the utilization of such business enterprises in contracts for planning, design, preconstruction, construction, alteration, or maintenance of State transportation infrastructure and in the procurement of materials for these projects. Should the study show a strong basis in evidence of ongoing effects of past or present discrimination that prevents or limits disadvantaged minority-owned and women-owned businesses from participating in the above contracts at a level which would have existed absent such discrimination, such evidence shall constitute a basis for the State's continued compelling governmental interest in remedying such race and gender discrimination in transportation contracting. Under such circumstances, the Department shall, in conformity with State and federal law, adopt by rule and contract provisions a specific program to remedy such discrimination. This specific program shall, to the extent reasonably practicable, address each barrier identified in such study that adversely affects contract participation by disadvantaged minority-owned and women-owned businesses. Based upon the findings of the Department's 2014 study entitled "North Carolina Department of Transportation Disparity Study, 2014," hereinafter referred to as "Study", the program design shall, to the extent reasonably practicable, incorporate narrowly tailored remedies identified in the Study, and the Department shall implement a comprehensive antidiscrimination enforcement policy. As appropriate, the program design shall be modified by rules adopted by the Department that are consistent with findings made in the Study and in subsequent studies conducted in accordance with subsection (b) of this section. As part of this program, the Department shall review its budget and establish a combined aspirational goal every three years, not a mandatory goal, in the form of a percentage, for the overall participation in contracts by disadvantaged minority-owned and women-owned businesses. This aspirational goal for disadvantaged minority-owned and women-owned businesses shall be established consistent with federal methodology and shall not be applied rigidly on specific contracts or projects. Instead, the Department shall establish a contract-specific goal or project-specific goal for the participation of such firms in a manner consistent with availability of disadvantaged minority-owned and women-owned businesses, as appropriately defined by its most recent Study. Nothing in this section shall authorize the use of quotas. Any program implemented as a result of the Study conducted in accordance with this section shall be narrowly tailored to eliminate the effects of historical and continuing discrimination and its impacts on such disadvantaged minority-owned and women-owned businesses without any undue burden on other contractors. The Department shall give equal opportunity for contracts it lets without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition, as defined in G.S. 168A-3, to all contractors and businesses otherwise qualified. The following definitions apply in this section: "Contract" includes, but is not limited to, contracts let under the procedures set forth in G.S. 136-28.1(a) and (b). "Disadvantaged Business" has the same meaning as "disadvantaged business enterprise" in 49 C.F.R. § 26.5 Subpart A or any subsequently promulgated replacement regulation. "Minority"' includes only those racial or ethnicity classifications identified by a study conducted in accordance with this section that have been subjected to discrimination in the relevant marketplace and that have been adversely affected in their ability to obtain contracts with the Department. "Women" means nonminority persons born of the female sex. The Department shall report annually to the Joint Legislative Transportation Oversight Committee on the utilization of disadvantaged minority-owned businesses and women-owned businesses and any program adopted to promote contracting opportunities for those businesses. Following each study of availability and utilization, the Department shall report to the Joint Legislative Transportation Oversight Committee on the results of the study for the purpose of determining whether the provisions of this section should continue in force and effect. This section expires August 31, 2022. History (1983, c. 692, s. 3; 1989, c. 692, s. 1.5; 1989 (Reg. Sess., 1990), c. 1066, s. 143(a); 2006-261, s. 4; 2009-266, s. 3; 2010-165, s. 9; 2013-340, s. 2.2; 2014-108, s. 7(a); 2015-231, s. 3; 2017-57, s. 34.15(a).) Editor's Note. - Session Laws 1989 (Reg. Sess., 1990), c. 1066, s. 143(b) provided that the Department of Transportation should compile and keep a current list of all disadvantaged, minority, and women businesses in the State that could participate in contracts bought by the Department, and should adopt a plan for actively seeking participation by disadvantaged, minority, and women businesses pursuant to the State policy set forth in this section. The Department was required to report to the Joint Legislative Highway Oversight Committee on the details of this plan and keep the Committee informed of its progress in meeting the goals established in this section. Session Laws 1993, c. 321, s. 169.2(g) provides: "Any law that contains 'Joint Legislative Highway Oversight Committee' shall be deemed to refer to the 'Joint Legislative Transportation Oversight Committee.' " Session Laws 1993, c. 321, s. 321 provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1993-95 biennium, the textual provisions of this act shall apply only to funds appropriated for and activities occurring during the 1993-95 biennium." Session Laws 2017-57, s. 34.15(b), provides: "The Department of Transportation shall develop a plan to establish and implement the combined goal required under subsection (a) of this section. The Department shall submit its plan, including any legislative recommendations, to the Joint Legislative Transportation Oversight Committee by February 1, 2018. The Department shall implement its plan developed under this subsection by April 1, 2018." Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'" Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium." Session Laws 2017-57, s. 39.6, is a severability clause. Effect of Amendments. - Session Laws 2006-261, s. 4, effective August 27, 2006, inserted "minority-owned and women-owned" in the middle of the section catchline; in subsection (a), in the first sentence, inserted "based on a compelling governmental interest" near the beginning, inserted "minority-owned and women-owned" near the middle, inserted "planning" near the middle, and inserted "preconstruction" near the middle, and, in the second sentence, substituted "among themselves in all efforts to conduct outreach and to" for "all other State agencies, institutions, and political subdivisions in efforts to" and inserted "minority-owned and women-owned" near the end; rewrote subsection (b); added subsection (b1); rewrote subsection (c); and added subsections (d) and (e). Session Laws 2009-266, s. 3, effective August 1, 2009, substituted "August 31, 2010" for "August 31, 2009" in subsection (e). Session Laws 2010-165, s. 9, effective August 2, 2010, in the section catchline, substituted "transportation contracts" for "highway contracts"; in the first sentence in subsections (a) and (b), substituted "State transportation infrastructure" for "State highways, roads, streets, or bridges"; in the second sentence in subsection (b), substituted "transportation contracting" for "highway contracting"; in subsection (b1), in the first sentence, substituted "the Department's 2009 study entitled 'Measuring Business Opportunity: A Disparity Study of NCDOT's State and Federal Programs'" for "the Department's Second Generation Disparity Study completed in 2004," in the third sentence, substituted "establish aspirational goals every three years" for "establish annual aspirational goals," in the fourth sentence, deleted "annual" preceding "aspirational" and substituted "federal methodology" for "methodology specified in the Study"; in subdivision (c)(1), made a minor stylistic change, and inserted "Subpart A"; added subdivision (c)(3); in the first sentence in subsection (d), substituted "shall report annually" for "shall report semiannually"; and in subsection (e), substituted "August 31, 2014" for "August 31, 2010." Session Laws 2013-340, s. 2.2, effective July 23, 2013, redesignated former subdivision (c)(1) as present subdivision (c)(1a); and added present subdivision (c)(1). Session Laws 2014-108, s. 7(a), effective August 6, 2014, substituted "2015" for "2014" in subsection (e). Session Laws 2015-231, s. 3, effective August 25, 2015, substituted "2014 study entitled 'North Carolina Department of Transportation Disparity Study, 2014'" for "2009 study entitled 'Measuring Business Opportunity: A Disparity Study of NCDOT's State and Federal Programs'" in the first sentence of (b1); and substituted "August 31, 2017" for "August 31, 2015" in subsection (e). Session Laws 2017-57, s. 34.15(a), effective April 1, 2018, in subsection (b1), substituted "a combined aspirational goal" for "aspirational goals", substituted "not a mandatory goal, in the form of a percentage" for "not mandatory goals in percentages", substituted "This aspirational goal" for "These aspirational goals", substituted "a contract-specific goal or project-specific goal" for "contract specific goals or project specific goals", deleted "for each disadvantaged minority-owned and women-owned business category that has demonstrated significant disparity in contract utilization" following "most recent Study", and made stylistic changes and, effective June 28, 2017, substituted "August 31, 2022" for "August 31, 2017" in subsection (e). For applicability, see editor's note.