Vandy prof questions Metro procurement program

Says Atlanta firm's underlying methodology has been called into question elsewhere - UPDATED with memo from Metro law director Sue Cain

Email | Print By Nate Rau

Update 4:25 p.m.: Metro Director of Law Sue Cain responded to the federal ruling with the following memo, which points out that the Griffin & Strong study performed for Metro was initiated a year after the disputed study was completed in 2003.

Cain said, in speaking with Griffin & Strong, that the firm had adjusted its methodologies before it began Metro’s study.

Pointing out that the procurement program was initiated this past April, Cain closed by stating that Metro “is still in the early stages of implementation of the non-discrimination ordinance. Should the Metropolitan Government consider the use of a race conscious remedy at some point in the future, that consideration would be made based on an analysis that conforms to the holding in the Rothe case.”

Here is Cain's memo.

On November 4, 2008, the Federal Circuit Court of Appeals ruled in the case Rothe Development Corporation v. Department of Defense.  In that case, the court questioned the validity of some of the work done by Griffin and Strong and relied upon by the Department of Defense in this case.  The plaintiff initiated this litigation in 1998, 9 years prior to the adoption of the non-discrimination ordinance by the Metropolitan Government.  Griffin and Strong worked closely with the Metropolitan Government in drafting the ordinance adopted.

I have spoken with Mr. Strong since this case was released.  Griffin and Strong has, of course, reviewed the case.  They plan to have an analysis of the case and its relevance to the Metropolitan Government to us by tomorrow.

The Circuit Court in Rothe was determining whether the 6 disparity studies considered by the District Court were sufficient to constitute prima facie evidence of a nation-wide pattern or practice of discrimination in public and private contracting.  A disparity study is a study attempting to measure the difference-or disparity-between the number of contracts or contract dollars actually awarded to minority-owned businesses in a particular contract market, on the one hand, and the number of contracts or contract dollars that one would expect to be awarded to minority-owned business given their presence in that particular contract market, on the other hand.  The contention in Rothe was that disparity studies erroneously included any minority-owned firm that was deemed potentially willing and able without regard to whether that firm was qualified.

One of the six studies, the one for Cincinnati, was prepared by Griffin & Strong, the research consultant for the Metropolitan Government that prepared the Metropolitan Government’s disparity study.  The Cincinnati data being studied by Griffin and Strong was gathered between 1995 and 2001 and the report was made in 2002.  Griffin & Strong began work for the Metropolitan Government in 2003.  When the non-discrimination ordinance was adopted in 2007, Griffin and Strong advises me that it had already made adjustments to its methodology based on more recent case law for its analysis of Metropolitan Government’s data.  The analysis of the Metropolitan Government after 2003 is not the same as the analysis used in Cincinnati before 2003.  Nonetheless, based upon the language in the most recent case, Rothe, Griffin and Strong is reviewing our study and may make additional suggestions.

The Metropolitan Government is still in the early stages of implementation of the non-discrimination ordinance.  Should the Metropolitan Government consider the use of a race conscious remedy at some point in the future, that consideration would be made based on an analysis that conforms to the holding in the Rothe case.

Sue Cain
Director of Law

As originally reported:

An assistant law professor at Vanderbilt has written a letter to Mayor Karl Dean expressing concerns over the Metro’s new procurement nondiscrimination program, which was passed in April.

Assistant professor Brian Fitzpatrick said the consulting law firm whose disparity study led to the procurement program has been questioned in recent weeks. The study was conducted by Griffin & Strong P.C. out of Atlanta.

According to Fitzpatrick, a similar study conducted by Griffin & Strong was criticized in a Nov. 4 ruling by a federal Court of Appeals. Quoting the court ruling on a disparity study done by Griffin & Strong, Fitzpatrick points to “defects in methodology” which detracted from the study’s value.

Griffin & Strong did a similar study that led to Metro’s nondiscrimination program, which works to secure contracts and subcontracts for minority-owned businesses. But Fitzpatrick warns Nashville might face the same fate as Cincinnati, where the contracting program was struck down on legal grounds.

“Although I have not reviewed in detail the study that Griffin & Strong did for Metro, I am concerned that the same methodological defects may exist in this study as well,” Fitzpatrick’s letter read.

Fitzpatrick said he did not take a stance on the value of the procurement nondiscrimination program, but simply wanted to draw the attention of Dean’s office and the Council to the recent court ruling.

“I just wanted to be helpful and alert them to a potential problem,” Fitzpatrick said. “Metro could be leaving itself open to a lawsuit, like the federal government just faced.”

At-large Councilman Jerry Maynard, an attorney by trade, said the points made in Fitzpatrick’s letter were invalid.

“I don’t know why Mr. Fitzpatrick has written this letter,” Maynard said. “We have a Metro Law Department that is capable and looked at the law and has looked at the program and they have approved it. So I defer to our Law Department.

“Second, programs like this have been existence for 10, 15 years. There’s one in Shelby County. They’re continuing to work... They’re not only working, they are valid and have withstood judicial scrutiny.”

Dean’s spokeswoman Janel Lacy said the mayor’s office took the letter – which is available here – very seriously and has passed it along to Metro Legal.