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Contractor Says Affirmative Action Cost Him Millions White Spokane Businessman Claims Reverse Discrimination

Sat., Sept. 23, 1995

Tom Stewart’s small firm has installed highway signs and guardrails in Spokane and across the state for the better part of three decades.

But time after time, while pursuing business, he has run into roadblocks.

Since 1981 alone, Stewart’s Spokane firm, Frank Gurney Inc., has submitted the lowest bids for dozens of projects, but lost the contracts because of his skin color.

Stewart is white.

While testifying Friday before a joint Congressional Constitution subcommittee, Stewart displayed letters he received from 17 general contractors, each acknowledging he submitted the lowest bid but each denying him a contract.

In each case, the contract was awarded to a minority- or woman-owned firm that submitted a higher bid.

And in each case, the general contractors cited federal laws requiring them to award a certain percentage of construction contracts to women and minorities.

Stewart calls it racial discrimination. The federal government calls it affirmative action. The Supreme Court this summer declared similar preferences unconstitutional.

Now, Congress is searching for a way to settle the dilemma, which pits more than 160 race-conscious laws against the words of the Supreme Court.

The subcommittee is trying to determine what - if any - congressional action should be taken.

On Friday, the committee listened to the likes of the U.S. Attorney General’s office, the University of Maryland’s Project on Civil Rights and Public Contracting and also Stewart.

“Unless Congress acts, the nightmare of discrimination will continue for some time to come,” said Stewart, who became president of his step-father’s firm in 1989 after Frank Gurney’s death. “It will go on, every week, at the bidding table for me and my family, just as it has for the last 14 years.”

The rejection letters - spanning from April 7, 1981, to Aug. 28, 1995 - show just a hint of a recurring problem, he said. Stewart estimated his business lost between $15 million and $20 million of work to higher-bid minority contractors.

The reasons are always the same.

“Although you had the low guard rail quotation, we were forced to use a higher quotation to meet our DBE (Disadvantaged Business Enterprise) requirements,” says a May 1 rejection letter.

In that case, Stewart’s bid was nearly $7,500 less than the nearest competitor. Sometimes, the differences were even greater.

“What we’re doing is creating a bias with a clear advantage based on race,” said Rep. Martin Hoke, R-Ohio, after hearing Stewart’s testimony.

But affirmative action advocates said Stewart’s case, although unfortunate, does not justify dismantling the equal opportunity system designed to reverse centuries of racial and sexual discrimination.

“If you take his individual situation, there may be some unfairness about that, but if you take the larger picture you will see minorities are discriminated against on a broad scale,” said Anthony Robinson, president of the Minority Business Enterprise Legal Defense and Educational Fund Inc.

Robinson testified that despite affirmative action mandates, minority-owned businesses receive only about 3 percent of all federal contracts.

“In the private sector, we are almost totally excluded,” he said. “The barriers of discrimination and racism continue to rear their ugly head.”

But Stewart said affirmative action is a form of discrimination.

“I’m just looking for fundamental fairness from the United States government,” he told senators and House members. “I want a chance to succeed or fail on my own merit.”

, DataTimes


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