SUMMARY: The Board of Directors of the Federal Deposit Insurance
Corporation (FDIC) is proposing to amend its regulation establishing an
outreach program for minority- and women-owned businesses and
announcing its intention to utilize that portion of the Federal
Affirmative Action Contracting Program, set forth in the Federal
Acquisition Regulations, providing contracting benefits to Small
Disadvantaged Businesses. The FDIC will no longer grant price
evaluation adjustments based solely on race and gender criteria. The
FDIC will, however, continue its outreach programs for minorities,
women, and individuals with disabilities and entities owned by them.
DATES: Written comments must be received on or before October 5, 1999.
ADDRESSES: All written comments should be addressed to Robert E.
Feldman, Executive Secretary, Attention: Comments/OES, Federal Deposit
Insurance Corporation, 550 17th Street NW., Washington, DC 20429.
Comments may be hand delivered to the guard station at the rear of the
550 17th Street Building (located on F Street), between the hours of
7:00 a.m. and 5:00 p.m. on business days. Comments may also be faxed:
(202) 898-3838 or submitted via Internet: comments@FDIC.gov. Comments
will be available for inspection and photocopying in the FDIC Public
Information Center, Room 100, 801 17th Street, NW., Washington, DC,
between 9:00 a.m. and 4:30 p.m. on business days.
FOR FURTHER INFORMATION CONTACT: Martin Blumenthal, Counsel, Legal
Division, Corporate Operations Branch, Corporate Legal Issues Section,
Contracting Law Unit (202) 736-0756; David McDermott, Acquisition and
Corporate Services Branch, Division of Administration, (202) 942-3434;
Rita Wiles Ross, Counsel, Legal Division, Corporate Operations Branch,
Legal Operations Section, Outside Counsel Unit, (202) 736-3072; or
Judith M. Wood, Chief, Diversity Branch, Office of Diversity and
Economic Opportunity, (202) 416-2456.
FDIC Minority- and Women-Owned Business Outreach Program
In 1989, with enactment of the Financial Institutions Reform,
Recovery and Enforcement Act (FIRREA), Congress mandated that the FDIC
augment its program for contracting activities by prescribing
``regulations to establish and oversee minority outreach program[s]
* * * to ensure inclusion, to the maximum extent possible, of
minorities and women, and entities owned by minorities and women, *
* * in all contracts entered into by the agency * * *'' 12 USC
In response, the FDIC adopted a regulation that obligates and
requires the Corporation to engage in outreach efforts to identify and
register minority-and women-owned businesses (MWOBs) that can provide
the goods and services utilized by the FDIC. 12 CFR 361.6(b); Minority
and Women Outreach Program--Contracting, 57 FR 15004 (April 24, 1992).
In addition, to ensure that MWOBs are ``being included in each
solicitation, the solicitation process will include: * * * (3) Allowing
qualified MWOBs a 3% price advantage and additional technical
consideration for competitively bid services; * * *'' 12 CFR
\1\ The FDIC's Division of Administration has issued an
Acquisition Policy Manual (APM) establishing policies and procedures
in contracting for non-legal services. The APM provides for the
application of the 3% price evaluation adjustment for awards of
$50,000 or more. APM at Chapter 6, Sec. D.6. There is no provision
for the award of ``additional technical consideration(s).''
In soliciting and awarding contracts for legal services, the Legal
Division ``actively seeks to engage firms owned by minorities and
women, both directly and in association with other firms.'' 12 CFR
361.11(c). However, there is no price evaluation adjustment or other
technical considerations available in contracting for legal services.
The Supreme Court has held that all racial classifications, whether
imposed by federal, state, or local governments, must be analyzed by a
reviewing court under strict scrutiny. Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 227; 115 S.Ct. 2097, 2113 (1995). To be sustained,
federal racial classifications, like those of a State, must serve a
compelling governmental interest and must be narrowly tailored to
further that interest. 515 U.S. at 229. In this context, a compelling
governmental interest may include past discriminatory barriers, whether
such barriers were a result of intentional acts of the federal
government or passive complicity in the acts of discrimination by the
private sector. Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
These decisions relate to programs that confer a benefit on the basis
of race. They do not address outreach efforts where an agency only
seeks to increase the pool of available MWOB contractors.
There does not appear to be a finding of discrimination underlying
12 U.S.C. 1833e. The FDIC does not believe such a finding is necessary
to sustain an outreach program, because, unlike a program that awards
financial benefits to contract with MWOBs, a pure outreach program has
``no winners or losers.'' It only increases the potential pool of MWOB
contractors, and it does not affect the award process or favor one
group of contractors over another based on considerations of race,
ethnicity, or gender.
However, as noted above, the FDIC program has gone beyond the pure
outreach mandate of section 1833e, and through the regulation, applies
a price evaluation adjustment to awards to MWOB contractors for non-
legal services. To pass strict scrutiny, such a program requires
findings of past discrimination establishing a compelling governmental
interest, Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989), but
there was no finding of past discrimination in the rulemaking adopting
part 361. Thus, to the extent it included a price evaluation
adjustment for MWOB firms, the FDIC program could well fail the first
half of the Adarand test.
Even assuming, arguendo, that there is an adequate compelling
governmental interest, the next phase of the Adarand test requires
consideration of whether the benefit conferred is sufficiently narrowly
drawn to satisfy the constitutional standard. The Court lists five
factors that may be relevant to the determination of whether an
affirmative action remedy is narrowly drawn to achieve its goal. They
are: ``(i) the efficacy of alternative remedies; (ii) the planned
duration of the remedy; (iii) the relationship between the percentage
of minority group members in the relevant population or workforce; (iv)
the availability of waiver provisions if the hiring plan could not be
met; and (v) the effect of the remedy upon innocent third parties.''
United States v. Paradise, 480 U.S. 149, 187 (1986).
Applying these standards to the 3% price evaluation adjustment
established in the regulation, it does not appear that alternative
remedies have been attempted; there is no time limit on the price
evaluation adjustment; the price evaluation adjustment is unrelated to
the percentage of minority firms in the industry or area; the price
evaluation adjustment is automatically awarded to all eligible firms in
all circumstances; and the remedy may well result in the loss of a
potential contract by non-MWOB firms despite more cost-effective bids.
Thus, the 3% price evaluation adjustment may not be sufficiently narrow
to satisfy the constitutional standard.
Affirmative Action in Federal Procurement
In 1996, the Department of Justice invited public comments on a
system designed to reform affirmative action in federal procurement in
response to Adarand. 61 FR 26042, May 23, 1996. Continuing in that
vein, in 1998, the Department of Defense, the General Services
Administration, and the National Aeronautics and Space Administration
published a revision to the Federal Acquisition Regulations (FAR)
implementing a new program of affirmative action in federal
procurement. 63 FR 52426, September 30, 1998.
In this program, each year, the Department of Commerce will make a
determination as to which industries demonstrate the results of past
discrimination and are thereby eligible for a benefit in federal
contracting. The Department of Commerce will also determine the size of
a price evaluation adjustment, not to exceed 10%, to be available in
those industries. In the first year of the program, eligible industries
that are generally used by FDIC include accounting firms, asset
managers, information technology contractors, office services, and
building services. The amount of the price evaluation adjustment for
1999 is 10%.
The price evaluation adjustment is available to firms certified as
Small Disadvantaged Businesses (SDBs) by the Small Business
Administration (SBA). An SDB is a small business firm that is at least
51% owned by individuals who are both socially and economically
disadvantaged. Socially disadvantaged individuals include Black
Americans, Hispanic Americans, Asian Pacific Americans, Subcontinent
Asian Americans, and Native Americans as a class, as well as other
groups that the SBA may from time to time designate, and individuals
that can prove by a preponderance of the evidence previous
discrimination on a case-by-case basis. Economically disadvantaged
individuals have an individual net worth of less than $750,000.\2\ The
standard for determining whether a firm qualifies as ``small'' varies
between industry classifications and may be based on revenue or number
\2\ The $750,000 excludes individual equity in a primary
residence and the value of the individual's ownership interest in
the firm seeking SDB status.
The price evaluation adjustment of 10% is available to qualified
SDBs bidding in competitive procurements over $100,000 for services
within the eligible industries as determined by the Department of
In lieu of the price evaluation adjustment, an SDB may take
advantage of an SDB participation factor, if the contracting agency
includes such a factor in the procurement. An SDB participation factor
may be offered at the discretion of the contracting agency in
competitive procurements over $500,000, or $1,000,000 for construction
contracts. The contracting agency assigns a value to this factor.\3\ A
non-SDB may take advantage of the factor by proposing to partner with
an SDB or to use SDB subcontractors. An SDB can also take advantage of
this factor as the prime contractor. However, the SDB would only be
eligible for the participation factor if it first waives the price
evaluation adjustment. Utilization of SDBs as subcontractors may also
be encouraged, at the discretion of the contracting agency, by offering
prime contractors a financial incentive to exceed the proposed SDB
subcontracting. An additional payment can be authorized where the prime
contractor promises a particular monetary target of SDB subcontracting
and its actual performance exceeds that promise. The monetary incentive
can be up to 10% of the SDB subcontracting dollars in excess of the
\3\ Only SDB participation within eligible industries may be
considered under this factor.
II. Utilization of SDB Program
It is unlikely that the FDIC MWOB price evaluation adjustment, as
implemented, would pass the Constitutional tests enunciated by the
Supreme Court in Adarand. There has been no articulation of a
compelling governmental interest as required by that case, and it does
not appear that the benefit conferred by the program is sufficiently
narrowly drawn to survive judicial scrutiny. On the other hand, the FAR
program appears to satisfy the Adarand tests. The benefits are only
available in industries where there is a compelling governmental
interest based on findings of past discrimination, and the 10% price
evaluation adjustment is related to the degree of under-representation
within the industry. Moreover, the benefit is not solely available on
the basis of race or ethnicity. Rather, to qualify, small firms must
also be owned and operated by socially and economically disadvantaged
Although the FDIC is not subject to the FAR, the FDIC believes that
the FAR's affirmative action contracting program provides a
constitutionally sustainable means of enhancing the opportunities for
SDBs in FDIC contracting. Accordingly, the FDIC intends to voluntarily
utilize that program in lieu of the constitutionally questionable price
evaluation adjustments based on race and gender that have been awarded
in the past. With this in mind, the FDIC solicits public comment on
whether the FDIC's proposed regulation should specifically reference
the regulations that implement the federal government's SDB procurement
program, in addition to such references in the FDIC's acquisition
policies and procedures. We will, of course, continue to maintain an
Outreach Program to ensure, to the maximum extent possible, that
minorities and women and entities owned by minorities and women are
given the opportunity to fully participate in contracts to provide both
legal and other services. In addition, the FDIC will continue to follow
its policy of including individuals with disabilities in the Outreach
The program, to be included in the FDIC Acquisition Policy Manual
(APM), will provide that, for goods and services
acquired under Formal Contracting Procedures, as defined in the APM,
generally involving expenditures of $100,000 or more, a price
evaluation adjustment will be available to technically qualified SDB
bidders in the following circumstances: (a) The bidder has been
certified as an SDB by the SBA under procedures set forth in 13 CFR
part 124; and (b) the Standard Industrial Classification (SIC) code for
the prime contract is one in which the Department of Commerce has
authorized the use of a preference. The eligible SICs and amount of the
price evaluation adjustment is established annually by the Department
of Commerce pursuant to 48 CFR 19.201(b).
Moreover, solicitations issued under the Formal Contracting
Procedures involving awards of $500,000 or more ($1,000,000 for
construction contracts) may also include an evaluation factor for SDB
participation in the performance of the contract. The value to be
assigned this factor, if any, is determined by the contracting officer
on a contract-by-contract basis. The prime contract need not be in an
SIC code identified as authorized by the Department of Commerce for the
use of preferences, but only SDB participation in authorized SIC codes
would be considered in the evaluation of the participation factor. SDB
participation may be in the form of subcontracts, joint ventures or
teaming partners.\4\ Where the SDB is bidding as a prime contractor in
response to a solicitation that includes an SDB participation factor,
the SDB will not be eligible for the participation factor unless it
first waives its price evaluation adjustment.\5\
\4\ Any joint venture in which an SDB undertakes to perform a
portion of the work could qualify for consideration under the SDB
participation factor. The technical value assigned to such joint
ventures under the SDB participation factor would, of course, depend
on the proportion of the work to be performed by the SDB joint
venturer. In other circumstances, a joint venture may itself qualify
as an SDB under SBA regulations. Generally, for a joint venture to
qualify, the SDB participant must have at least a 51% ownership
share, perform 51% of the work, and the managing partner must be
from the SDB participant.
\5\ In evaluating this factor, the contracting officer may
consider the specificity of the proposal, the enforceability of the
commitments, the complexity and variety of the work to be performed
by SDBs, the realism of the proposal, and the contractor's past
performance in complying with SDB participation goals.
Utilization of SDBs as subcontractors may also be encouraged, at
the FDIC's discretion, by offering prime contractors a financial
incentive to exceed the proposed SDB subcontracting. An additional
payment can be authorized where the prime contractor promises a
particular monetary target of SDB subcontracting and its actual
performance exceeds that promise. The monetary incentive can be up to
10% of the SDB subcontracting dollars in excess of the target amount.
The FDIC will not certify SDBs. That process will be carried out by
the Small Business Administration under procedures established in the
SBA's regulations, 13 CFR part 124. SDBs responding to FDIC
solicitations are responsible for identifying themselves and certifying
their current status as an SDB. An SDB that has applied for but not yet
received SBA certification may be entitled to treatment as an SDB where
certification can be obtained before the contract is awarded. It is the
intention of the FDIC to enter into a memorandum of understanding with
the SBA, to establish procedures whereby the SBA will treat FDIC
contractors seeking SDB certification in the same manner as contractors
with FAR agencies that are similarly situated. However, if
certification cannot be obtained in a timely manner, the contract may
be awarded to another bidder.\6\
\6\ The FDIC will communicate with the SBA to ensure that FDIC
contractors seeking certification as SDBs are given the same
consideration as other contractors seeking similar certification. In
FAR contracting, the SBA has committed itself to expedited treatment
of certification applications where an award is pending, and if
certification is not granted within that fifteen-day period, the
contracting officer may make the award to the next best bidder.
III. Notice of Proposed Rule Making
To facilitate the implementation of the policy enunciated above, we
propose to repeal the provisions of part 361 that confer a price
evaluation adjustment, 12 CFR 361.8(b)(3), as well as make other
conforming amendments to the regulations. The FDIC Office of Diversity
and Economic Opportunity (ODEO) will continue to have overall
responsibility for providing the FDIC with technical assistance and
guidance to facilitate the identification, registration and
solicitation of minority- and women-owned firms including minority- and
women-owned law firms (MWOLFs). ODEO is also responsible for the
Corporation's outreach efforts, such as:
(1) Identifying MWOBs and MWOLFs that can provide legal or other
services to FDIC;
(2) Conducting seminars, meetings, workshops and other various
functions to promote the identification of MWOBs and/or MWOLFs; and
(3) Participating in conventions, seminars, meetings, workshops and
other functions to promote the identification and inclusion of MWOBs
Moreover, ODEO has specific responsibility for the Outreach Program
with respect to providers of non-legal services, and in addition to the
functions noted above, it will distribute information concerning the
FDIC program for outreach to minority- and women-owned businesses.
Generally, ODEO will work with contracting officials to ensure that
minority- and women-owned firms are included on FDIC solicitation
ODEO will also collect information from each FDIC office and
division that performs contracting or outreach activities, on a
quarterly basis or upon request, including statistical information on
contract awards and solicitations by designated demographic categories
and related outreach activities. The FDIC will request and maintain
information on firms that have represented themselves as minority- or
women-owned for purposes of outreach efforts and statistical reporting.
The Legal Division will perform outreach efforts targeted at
providers of legal services. Generally, in addition to the functions
listed above, the Legal Division's National Outreach Coordinator will
require, at a minimum, quarterly submissions of statistical information
on legal fees and expenses paid to outside counsel by designated
demographic categories. FDIC will also encourage use of minority and
women lawyers within other firms and partnering of firms with MWOLFs.
Moreover, specific procedures and activities will be detailed in the
Legal Division's Outside Counsel Deskbook as well as the FDIC's web
site at: www.fdic.gov.
Proposed Rule Changes
In addition to a general editorial updating and simplification of
the rule, the FDIC proposes to amend Sec. 361.3 to remove unnecessary
definitions and to conform the definition of a minority to the SBA
definition. Section 361.4 would remain essentially unchanged.
The FDIC proposes to remove Secs. 361.7-361.10 because the FDIC
will no longer grant price evaluation adjustments based on race and
gender criteria. Statistics based on self-certification of minorities
and women and entities owned by them will be used in conjunction with
survey efforts solely for monitoring the FDIC's outreach efforts.
The FDIC seeks public comment on these proposed rule changes.
IV. Matters of Regulatory Procedure
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.), the FDIC may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid Office of Management and Budget (OMB) control number.
Public comment and OMB approval has previously been obtained for an
FDIC collection of information titled ``Acquisition Services
Information Requirements'' which includes questions regarding
contractors' minority status. This information collection, approved
under OMB control number 3064-0072, is valid until August 31, 2001 and
will not be changed by this proposed rulemaking.
Regulatory Flexibility Act
The FDIC has determined that this proposed rule may have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., because the amendment repeals the 3% price evaluation adjustment
that FDIC rules had provided to minority- and women-owned businesses,
including small businesses. Accordingly, this initial regulatory
flexibility analysis has been prepared in accordance with 5 U.S.C. 603.
In Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995), the
Supreme Court applied strict judicial scrutiny to federal affirmative
action programs that use racial or ethnic criteria as a basis for
decision making. The FDIC has determined that its price evaluation
adjustments for minority- and women-owned businesses may not pass the
Constitutional tests enunciated by the Supreme Court in Adarand.
Therefore, in this proposed rulemaking, the FDIC proposes to amend its
regulation to repeal that part of the regulation which provides a 3%
price evaluation adjustment to minority- and women-owned businesses
that bid on FDIC contracts. The FDIC believes that this approach is the
only readily apparent solution, because providing any price incentive
without meeting the criteria of the Court would be constitutionally
The Federal Acquisition Regulations (FAR), 63 FR 52426, (September
30, 1998), Reform of Affirmative Action in Federal Procurement, provide
a constitutionally sustainable means of enhancing opportunities for
small and disadvantaged businesses. The FDIC will voluntarily utilize
the FAR's affirmative action program.
The objective of this proposal is to implement an outreach and
affirmative action procurement program consistent the Supreme Court's
decision in Adarand.
The 3% price evaluation adjustment being proposed for repeal was
available to minority- and women-owned firms without regard to whether
such firms were also ``small'' businesses. 12 CFR 361.8(b)(3). In 1998,
the FDIC awarded 4,628 contracts, including 1,287 (28%) to minority- or
women-owned firms. However, the overwhelming majority of those
contracts were awarded without reference to the price evaluation
adjustment because the contract was for less than the $50,000 threshold
in the rule, or the purchase was made off the Federal Supply Schedule.
Of the 537 awards that were subject to the price evaluation adjustment,
75 (14%) went to minority- or women-owned firms. Based on a self-
certification, the majority of those firms (about 62%) identified
themselves as small business concerns. The FDIC anticipates that there
will be no significant change in its contracting activity for 1999.
Thus, there may be some adverse effect on small entities that enjoyed
the price evaluation adjustment under the regulation, principally
small, women-owned firms. However, given the FDIC's record of contract
awards where the price evaluation adjustment was not applicable as well
as the benefits being conferred on Small Disadvantaged Businesses under
the federal affirmative action contracting program, it is anticipated
that the economic impact on small businesses may be substantially
Repeal of regulations establishing a 3% price evaluation adjustment
will not impose any new paperwork burden. Public comment and Office of
Management and Budget approval has previously been obtained for an FDIC
collection of information titled ``Acquisition Services Information
Requirements'' which includes questions regarding contractors'
minority- and/or women-owned status. This information collection,
approved under OMB control number 3064-0072 is valid until August 31,
2001 and will not be changed by the rule changes proposed herein. This
rule does not duplicate, overlap, or conflict with any other federal
Because the 3% price evaluation adjustment for minority- and women-
owned businesses would likely fail the constitutionally mandated strict
scrutiny test established in the Adarand case, the only readily
apparent alternative is to repeal the regulation. Nevertheless, parties
may wish to address the impact of repeal on contract awards to small
Assessment of Impact of Federal Regulation on Families
The FDIC has determined that this proposed amendment will not
affect family well-being within the meaning of section 654 of the
Treasury and General Government Appropriations Act of 1999 (Public Law
List of Subjects in 12 CFR Part 361
Government contracts, Lawyers, Legal services, Minority businesses,
Reporting and recordkeeping requirements, Women businesses.
For the reasons set forth above, the Board of Directors of the
Federal Deposit Insurance Corporation proposes to revise part 361 of
chapter III of title 12 of the Code of Federal Regulations as follows:
PART 361--MINORITY AND WOMEN OUTREACH PROGRAM CONTRACTING
361.5 Oversight and monitoring.
Authority: 12 U.S.C. 1833e.
Sec. 361.1 Purpose.
The purpose of the FDIC Minority and Women Outreach Program (MWOP)
is to ensure that minority- and women-owned businesses (MWOBs) are
given the opportunity to participate fully in all contracts entered
into by the FDIC.
Sec. 361.2 Policy.
It is the policy of the FDIC that minorities and women, and
businesses owned by them have the maximum practicable opportunity to
participate in contracts awarded by the FDIC.
Sec. 361.3 Definitions.
For purposes of this part:
(a) The term ``minority'' has the same meaning as the term
``socially disadvantaged individuals'' as set out in the Small Business
Administration regulations at 13 CFR 124.103(b).
(b) Legal Services means all services provided by attorneys or law
firms (including services of support staff).
Sec. 361.4 Scope.
The FDIC outreach program applies to all contracts entered into by
the FDIC. The outreach program is incorporated into FDIC policies and
guidelines governing contracting and the retention of legal services.
Sec. 361.5 Oversight and monitoring.
(a) The FDIC Office of Diversity and Economic Opportunity (ODEO)
has overall responsibility for nationwide outreach oversight, which
includes, but is not limited to, the monitoring, review and
interpretation of relevant regulations. In addition, the ODEO is
responsible for providing the FDIC with technical assistance and
guidance to facilitate the identification, registration, and
solicitation of minority- and women-owned businesses.
(b) Each FDIC office that performs contracting or outreach
activities shall submit information to the ODEO on a quarterly basis,
or upon request. Quarterly submissions will include, at a minimum,
statistical information on contract awards and solicitations by
designated demographic categories.
Sec. 361.6 Outreach.
(a) Each office engaged in contracting with the private sector will
designate one or more MWOP coordinators. The coordinators will perform
outreach activities for MWOP and act as liaison between the FDIC and
the public on MWOP issues. On a quarterly basis, or as requested by the
ODEO, the coordinators will report to the ODEO on their implementation
of the outreach program.
(b) Outreach includes the identification and registration of MWOBs
who can provide goods and services utilized by the FDIC. This includes
distributing information concerning the MWOP.
(c) The identification of MWOBs and minority- and women-owned law
firms (MWOLFs) will primarily be accomplished by:
(1) Obtaining various lists and directories of minority-and women-
owned firms maintained by other federal, state, and local governmental
(2) Participating in conventions, seminars and professional
meetings comprised of, or attended predominately by, MWOBs and/or
(3) Conducting seminars, meetings, workshops and other various
functions to promote the identification and registration of MWOBs and/
(4) Placing MWOP promotional advertisements indicating
opportunities with FDIC in minority- and women-owned media; and
(5) Monitoring to assure that FDIC staff interfacing with the
contracting community are knowledgeable of, and actively promoting, the
By order of the Board of Directors.
Dated at Washington, D.C., this 27th day of July 1999.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
[FR Doc. 99-20126 Filed 8-5-99; 8:45 am]
BILLING CODE 6714-01-P