Debbie Ferrari spent the better part of 40 years in California’s construction industry, working as a manager and estimator for an Alameda County trucking company. Over that time, she mastered the bidding process to acquire jobs for the company’s employees and independent owner-operators alike, including government contracts for public jobs.
The trucking business has its share of difficulties. Some, such as inflation and staggering fuel prices, affect everyone. In Alameda County, however, not all contractors are treated equally. The county employs race-based set-asides, requiring prime contractors to reserve at least 15% of each contract’s dollar amount for minority-owned subcontractors. And because a project often has many subcontractors, this 15% set-aside often works to exclude specialty subcontractors—such as those in trucking—from bidding on public projects altogether.
Racial set-asides in public contracting go back decades, and Debbie has seen first-hand that they’ve served as a boon to connected insiders rather than startup businesses looking to grow.
Alameda County had two racial set asides affecting contractors like Debbie. The Construction Compliance Program, run by the county’s Public Works Agency, imposed a 15% participation goal for minority-owned businesses for construction projects with bids of $100,000. Meanwhile the Enhanced Construction Outreach Program, run by the General Services Agency, did the same for sealed bid projects over $125,000.
The U.S. Constitution’s Fourteenth Amendment and Proposition 209—a California constitutional provision—forbid racial discrimination in public contracting. Alameda County’s discrimination was not only plainly unconstitutional, it was also unjust, because it subverts individual opportunity in the name of set-asides for politically favored groups.
Represented by PLF free of charge, Debbie Ferrari sued the county in 2022. She was joined by Chunhua Liao, a Chinese immigrant that has led grassroots efforts to oppose racial discrimination in California, and the Californians for Equal Rights Foundation (CFER), a nonprofit advocacy organization at the forefront of defending California’s constitutional requirement of equality before the law in public contracting.
At first, Alameda County defended its discriminatory contracting programs in court—but after a defeat in state appellate court, the county decided to repeal the two programs. The repeal is a victory for Debbie, Chunhua, CFER, and all Americans who believe the government should not award contracts according to immutable characteristics like race.
What’s At Stake?
- The government cannot award contracts for public services on the basis of race. The government should select its contractors based on their ability to perform the work needed, rather than on the race of their owners.
