In a seismic shift, a series of court rulings have held that some of the federal government’s largest diversity programs violate the Constitution’s guarantee of equal protection, often citing the Supreme Court’s 2023 decision to overturn race-conscious college admissions. As a result, key agencies have dropped race and gender preferences born in the civil rights era and intended to level the playing field by setting aside billions each year in contracting dollars for minority- and women-owned firms.
“A reality has set in that it’s a different game,” said Tony Franco, managing partner at PilieroMazza, which represents numerous minority contractors. How the government tries to achieve equality “is going to require much more thinking through of how to get to disadvantaged communities of all races.”
Since the Supreme Court last year ruled against race-based admissions at Harvard University and the University of North Carolina at Chapel Hill, several contracting programs, including a Small Business Administration program that funnels billions in federal contracts to disadvantaged firms, have faced adverse rulings.
Franco said the Biden administration’s decision not to appeal that SBA ruling signaled a major turning point, indicating that the administration agreed the process needed to be changed to comply with the Constitution. As a result, any programs that similarly presume minorities are disadvantaged may be subject to revamping, he said.
Excerpt taken from the article “Minority-Owned Firms Fear ‘Crisis’ As Affirmative Action Programs Fall” by Julian Mark for the Washington Post. Visit this link for the full article (subscription required).
About Tony Franco
In addition to serving as Managing Partner of PilieroMazza, Tony has an active practice in the Firm’s Government Contracts Group where he has over 30 years of experience representing government contractors and commercial businesses. His practice encompasses all aspects of federal government contracting. Tony also works closely with attorneys in the Firm’s Business & Transactions Group on corporate transactions and the Labor & Employment Group to address employer-employee challenges in the highly regulated market of government contracting. Tony also works with the Firm’s Litigation & Dispute Resolution Group, which assists clients with commercial and employment disputes that often arise when clients are doing business with third parties.
Tony counsels clients on a wide range of complex legal and regulatory matters, including (i) protests and claims against the federal government; (ii) commercial and contractual disputes; (iii) investigations and compliance audits; (iv) suspension and debarment proceedings; and (v) entity formation, including joint ventures, operating agreements, and shareholder agreements.
Tony primarily represents government contractors—large and small—interested in pursuing set-aside opportunities under SBA’s small business programs. He advises firms on teaming, joint ventures, mentor protégé arrangements, and strategies to defend awards from size, status, and bid protests. Tony assists firms in complying with the FAR and rules applicable to all small business contracting programs. His practice also encompasses the representation of Tribes, Alaska Native Corporations, and their government contracting subsidiaries.
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