Expansion of State’s Affirmative Action Program Remains in Effect

Construction going on in the city.

In a prior posting on this blog, I explained that a Connecticut program, which requires contractors on state public works construction projects to submit affirmative action plans to the Commission on Human Rights and Opportunities (the “Commission”) for approval, was being expanded to include projects administered by municipal and quasi-governmental agencies, and that the program’s expansion would be a problem because the Commission was already experiencing a backlog of submitted affirmative action plans requiring approval.  The Commission’s backlog has a significant impact on the construction industry because the “[f]ailure to develop an approved affirmative action plan … shall act as a bar to bidding on or the award of future contracts [and the Commission’s approval] shall be prima facie proof of the contractor’s eligibility to bid or be awarded contracts.”  Conn. Gen. Stat. § 46a-68c.  Thus, at a minimum, until the Commission is in a position to handle the required workload, the expanded program will significantly impact the state’s construction industry.

Due to the current situation, legislation was proposed last session that, if it had been passed, would have delayed the implementation of the expanded program until July 1, 2019. H.B.-5049.  The proposal to delay the expansion of the program was supported by trade associations and governmental agencies alike.

  • Kate Rotella, on behalf of the Public Purchasing Association of Connecticut, testified that “[t]he implementation date of the mandate of October 1, 2015 was unfair to all involved.”

  • Betsy Gara, Executive Director of Connecticut Council of Small Towns, testified that projects funded by Community Development Block Grants were “on hold as municipalities struggle to develop bid notices, contract language and ensure that contractors bidding on such projects are eligible.”

  • Francis R. Pickering, Executive Director of the Western Connecticut Council of Governments testified that “[t]he short period between passage of this mandate and its effective date, and the broad range of projects it covers, has left municipalities and the state poorly prepared to implement it.”

  • Ralph Eno, the First Selectman for the Town of Lyme, testified that his town’s “shovel ready landfill closure project has been significantly delayed.”

  • Department of Administrative Services Commissioner Melody A. Currey testified that “[d]elaying the program until July 1, 2019 will give all the parties involved the time they need to fully prepare for this interaction.”

In addition to administrative concerns, there was also testimony that stated “[t]here are not enough SBE’/MBE’s currently registered in the program to support the demand created by this mandate.”  See testimony of Kate Rotella.

Unfortunately, the proposed legislation that would have delayed the program’s expansion did not pass and the expanded program remains in effect despite the problems highlighted above.

In addition, the Connecticut Academy of Science and Engineering is still working on the disparity study designed to demonstrate the constitutional basis for the program.

In light of the foregoing, contractors are now faced with an overburdened administrative agency administering a program that many charged with its implementation do not understand at a time when there may not be an adequate number of qualified entities available for its implementation.  All of this might be amusing if the ramifications were not so detrimental to construction companies that simply want to be earn a living.  Moreover, the situation becomes more egregious when one considers that the supporting study is not yet complete and there is no guarantee that its results will be able to justify the program’s existence.

If you are a contractor being adversely impacted by the current state of the state’s affirmative action program, please give me a call at (203) 640-8825.

Scott Orenstein