Disparity studies examine whether or not there is evidence of discrimination affecting minorities and women, and minority- and women-owned firms. Disparity studies are one way for government agencies to examine whether programs are needed to assist small businesses and/or minority- and women-owned businesses in government contracting and purchasing.
The U.S. Supreme Court decision in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) set the legal standards local governments must meet for any race-conscious programs to be constitutional. Immediately after the Croson decision, the City and County of Denver retained a team including David Keen to conduct one of the first disparity studies in the country. He has been a leader in this field since that time. He has completed disparity studies for more than 100 government clients, including states, state DOTs, cities and counties, airports, transit agencies, housing authorities and water providers.
Mr. Keen’s disparity study methodology has been favorably reviewed by the courts. The U.S. Justice Department and U.S. Department of Transportation have also reviewed and favorably commented on this methodology.
No program enacted by a government agency based in part on one of Mr. Keen’s studies has ever been successfully challenged in court. Mr. Keen has testified as an expert in federal district court in support of these programs, and has served as an unnamed expert assisting local governments facing litigation.
David Keen is a frequent speaker on disparity study issues at national conferences and serves on the Transportation Research Board’s Disadvantaged Business Enterprise Committee.
The following provide examples of recent work.
2018 Minnesota Joint Disparity Study. Keen Independent conducted a multi-jurisdictional disparity study for state and local agencies in Minnesota. This was one of the largest disparity studies ever completed.
2016 Fulton County, Georgia Small Business Study. Keen Independent and Holland & Knight completed a small business availability study and drafted legislation for a new Small Business Enterprise program, which was approved by County Commissioners in October 2016.
2016 Montana Department of Transportation Disparity Study. Keen Independent completed a disparity study for the Montana Department of Transportation, which it used to establish its overall DBE goal and make decisions about the operation of the Federal DBE Program for its USDOT-funded contracts.
2016 Oregon Department of Transportation Disparity Study. Keen Independent’s disparity study helped ODOT obtain USDOT approval to include all DBE groups in its DBE contract goals program. Keen Independent worked closely with ODOT to prepare its overall DBE goal for FHWA-funded contracts.
2015 City of Atlanta Disparity Study. Keen Independent worked with the law firm Rosales Law Partners to perform the 2015 Disparity Study for the City of Atlanta. David Keen led this effort. The disparity study examined construction, services and commodities contracts and conditions within the local marketplace.
2015 ADOT Disparity Study, 2014 ADOT Availability Study. Keen Independent completed availability and disparity studies for Arizona Department of Transportation. ADOT used information from these studies to set its future overall DBE goals for FHWA-, FTA- and FAA-funded contracts. ADOT also used these studies to make certain decisions about the operation of the Federal DBE Program for its USDOT-funded contracts.
2015 Madison Public Works Disparity Study. The City of Madison commissioned Keen Independent to conduct a disparity study to determine if there is a level playing field for minority- and women-owned firms when competing for City public works contracts and subcontracts.
Nevada Department of Transportation 2013 Disparity Study. Keen Independent led the 2013 Disparity Study for NDOT. The team is examining minority- and women-owned business participation in NDOT transportation contracts and in the local industry. This study will provide NDOT information concerning future operation of the Federal DBE Program.
Litigation support. Keen Independent provided expert assistance concerning litigation involving a city’s minority business program.
California Department of Transportation Disparity Study. Mr. Keen led a consulting team that researched the utilization and availability of minority- and women-owned firms for California Department of Transportation (Caltrans) construction and engineering contracts. The study team conducted in-depth personal interviews with business owners, researched neutral remedies, and conducted public hearings. Caltrans used the disparity study to prepare an overall DBE goal and develop new measures as part of its implementation of the Federal DBE Program.
The 2007 Caltrans disparity study and Mr. Keen’s subsequent testimony have been the foundation of Caltrans’ successful defense of its implementation of the Federal DBE Program after being challenged in federal court.