San Francisco County Grand Jury
• 2004-2005
A Report of the 2004-05 Civil Grand Jury For the City and County of San Francisco City Contracting and Affirmative*
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⚠️ Este contenido ha sido traducido automáticamente. El texto original en inglés es la versión oficial. La traducción puede contener errores.
Note: Missing finding numbers detected: F5
Findings and Recommendations 5 findings
F1
Racial and gender preferences in City public contracting have been judicially declared to violate the Constitution of the State of California. 17 "Interim HRC Attachment 4A. Requirements for General Services Request for Proposals", Human Rights Commission, 12/1/04 18 Ibid., 4.03.B.1.
Related Recommendations (1)
R1
The Director shall determine whether a proposer has met the post-award trainee requirements. The Director's decision shall be final. The HRC staff shall inform the awarding department of the proposers that have met the requirements and are eligible for contract close-out. v 09-02-04 CITY AND COUNTY OF SAN FRANCISCO HRC ATTACHMENT 2 HUMAN RIGHTS COMMISSION Requirements for Architecture and Engineering Contracts Substitution or addition of subconsultants: HRC must be informed by the prime consultant of any subconsultant that is replaced or added during performance of the contract. All new subconsultants with contracts of $25,000 or more must submit HRC Form 5 (Architecture and Engineering Contracts Employment Affirmative Action Requirements and Non-Discrimination Provisions) of award of the subcontract. B. Non-Compliance With Chapter 12B:
F2
Forms being used by the City to establish eligibility for contracting with the City of San ٠ Francisco contain race and gender preferences in violation of the law.
Related Recommendations (1)
R2
Forms being used by the City to establish eligibility for contracting with the City of San ٠ Francisco contain race and gender p
F3
Chapter 6 of the City's Administrative Code encourages preferences to minorities and women in construction contracts in violation of the law.
Related Recommendations (1)
R3
Chapter 6 of the City's Administrative Code encourages p
F4
Continued violation of the law is unwarranted and exposes the City to legal and financial risks.
Related Recommendations (1)
R4
Continued violation of the law is unwarranted and exposes the City to legal and financial risks. Recommendation The City should immediately eliminate explicit or implicit preference based on race, sex, color, ethnicity or national origin from City contracting rules, publications, policies and practices. Board of Supervisors - 90 days City Attorney - 60 days City Controller - 60 days Human Rights Commission - 60 days Mayor – 60 days
F6
A summary of a job description and training for the trainee with the rate of pay (HRC recommends no less than MCO requirement) should be submitted to HRC for approval. The trainee's commitment does not require that he/she is used only on this project, but also on other projects under contract to the A/E firm, which is appropriate for the trainee's skill development.
Related Recommendations (1)
R6
A summary of a job description and training for the trainee with the rate of pay (HRC recommends no less than MCO requirement) should be submitted to HRC for approval. The trainee's commitment does not require that he/she is used only on this project, but also on other projects under contract to the A/E firm, which is appropriate for the trainee's skill development.
Additional Recommendations 2
These recommendations are not explicitly linked to specific findings.
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R8A trainee is defined as a woman or minority person or person with a disability who: Will receive training in a technical (A&E related) field, e.g. drafting,
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R10Where there are DBEs available for doing portions of the work normally performed by the proposer with its own staff, the proposer will be expected to make good faith efforts to make portions of such work available for DBEs. A DBE Prime poposer cannot count itself to meet the DBE subconsultant goal C. Substitution, removal or contract modification of DBE: No DBE subconsultant or other business listed on HRC Form 2A (DBE Subconsultant Participation) shall be substituted, removed from the contract or have its contract, purchase order or other form of agreement modified in any way without prior HRC approval. EMPLOYMENT NON-DISCRIMINATION PROVISIONS. PART IV. 4.01 GENERAL The provisions of this section shall constitute the consultant's and subconsultant's affirmative action in employment nondiscrimination obligations required by Chapter 12B of the Administrative Code as a condition of contract award. 4.02 NONDISCRIMINATION PROVISIONS A. Prior to the award of the contract, the consultant must agree that it does and will not, during the time of the contract or any contract amendment, discriminate in the provision of benefits between its employees with spouses and employees with domestic partners. B. The consultant and subconsultant on this contract will not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, national origin, age, sex, sexual orientation or disability. This includes employment, upgrading, demotion or transfer, recruitment, layoff or termination, rates of pay or other forms of compensation and selection for training including apprenticeship. C. Trainee Requirements: The goal listed below are for hiring disadvantaged minorities, women, and
Conclusions 1
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CL1The HRC is charged with a public trust to respect the rule of law and vigilantly exercise that trust. We are concerned that the constitutional violations addressed in this report are readily apparent on HRC's contracting forms and should not have been overlooked by those responsible. We acknowledge that a majority of San Franciscans voted against Proposition 209 and might well endorse affirmative action policies. We also realize that the line between discrimination against and discrimination in favor of persons on grounds of race or gender may not always be clear, and that artful legislation may blur that line. But there is no such ambiguity here. The Civil Grand Jury believes the HRC's contracting practices violate the State Constitution owing to its continuing enforcement of racial and gender preferences. There are substantial costs to the City associated with litigation such as Coral Construction. The City paid outside counsel $288,998 for its participation in the Coral case. These costs are in addition to the opportunity costs of foregone alternative uses of the time of the City Attorney's Office. The City is now incurring more costs for the appeal of the Coral decision. In addition, the City will probably be assessed attorneys' fees to compensate Coral's attorneys if Coral is the prevailing party on appeal. Meanwhile, the City risks further litigation by continuing the illegal contracting practices described above. Findings and Recommendation
* This report's PDF did not contain easily extractable text and required Optical Character Recognition (OCR) for analysis. There may be minor errors in the extracted findings and recommendations due to OCR limitations with scanned documents.