WHITE BUSINESSMAN'S BURDEN: "I really thought that it could ruin my business," says Pech.
Though Pech says no one has ever publicly accused him of racism, competitors and civil-rights advocates alike have blasted him for being greedy, pointing out that Adarand already gets more than its share of Colorado's guardrail jobs. That work is paid for out of public coffers, says Vandenberg of the Colorado Progressive Coalition. He argues that minorities and women pay taxes just like Pech, and they deserve to get a portion of the work, too. "For Randy Pech to complain about not getting every single contract, it really looks like he's being a spoiled brat," says Vandenberg.
"Why is he fighting over that little piece of crumb?" adds Ron Montoya, a small-business owner in Denver, who founded the city's Hispanic Chamber of Commerce. "What does he want -- 100%? My God, give someone else a chance."
Pech has also had to face down charges that he's a hypocrite, given that three years ago he himself claimed he'd been discriminated against because he's white and applied to join minority- and woman-owned businesses in the CDOT's "disadvantaged business enterprise" program. Pech says he decided to apply after a federal judge stated that he had in fact been discriminated against and might be eligible. Though Adarand's application was accepted, Pech insists he never felt good about it. And on the advice of his lawyers, he dropped out of the program after only a year.
Pech insists that he was only trying to level the playing field. He points out that as of last December three of his rivals -- Gonzales Construction, Cruz Construction, and C & K -- were still in the program, though all of them have been in business for at least 15 years and, he argues, don't need the government's help to get contracts. "We all know how to do this. We all have the equipment. We all get our jobs done," says Pech.
Managers of C & K and Gonzales Construction didn't return numerous calls for comment, while Cruz Construction owner Joe Cruz declined to be interviewed. But even officials at the CDOT agree that Pech's complaint on that point may be valid. Although the CDOT sets income ceilings for some 350 participating disadvantaged businesses ($17.4 million a year in gross revenues for prime contractors and a maximum of roughly $11.5 million a year for subcontractors), there's no limit on how long those companies can remain in the program. Debra Gallegos, who runs the CDOT's Center for Equal Opportunity, agrees that the rules should be changed. "We'd be supportive of a graduation clause," she says.
Gallegos, however, insists that overall the program is still an effective tool for helping undercapitalized minority companies get established. "You can't keep saying 'We're going to help minorities' unless you develop an infrastructure to do that," says Gallegos. "Why in the world isn't there more lobbying to mend [the program], rather than get rid of it?"
Because of the program, Hispanic- and woman-owned construction businesses in Colorado have made significant progress in landing contracts. But, according to Gallegos, three years ago, when the CDOT determined that companies owned by Hispanics and women were finally winning a proportionate share of work and took them off the state's priority-hiring list, the number of contracts they received almost immediately dropped. "We thought industry would continue using them, but utilization went down," says Gallegos. Consequently, last spring the CDOT put Hispanic- and woman-owned construction companies back on its priority-hiring list.
Endgame
Of course, Colorado's priority-hiring list could soon be phased out altogether. If the Supreme Court sides with Pech, the state's minority-contracting program, along with every other federally mandated minority program in the country, would be forced out of business.
Many legal observers contend the Court is still too torn on the topic of affirmative action to actually go that far. But Pech's lawyers insist the Court wouldn't have agreed to hear Adarand's case again unless it was prepared to act, and they praise Pech for sticking to the fight. "He's a civil-rights hero," declares J. Scott Detamore, a lawyer on Pech's legal team. "It takes a helluva lot of guts to do what he did and hang in there."
To old-school civil-rights leaders like Bond, however, Pech's case represents yet another huge potential setback in the ongoing fight against discrimination. "Randy Pech is no more of a civil-rights hero than Bull Connor [the segregationist police commissioner] in Birmingham was," says Bond.
Minority-contracting programs don't help only individual companies, adds Denver businessman Montoya. They also help create jobs and promote investment in minority communities. "It's a shame that people don't understand that this country is built on diversity," he says.
Pech, for his part, is hoping that the Supreme Court will finally deliver a definitive ruling. And he's looking forward to his lawsuit's being over. "I'd like to concentrate on my business," he says, "instead of trying to fix federal policy."
Susan Hansen is a senior editor at Inc.
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