{"id":5533,"date":"2026-07-02T22:00:54","date_gmt":"2026-07-02T22:00:54","guid":{"rendered":"https:\/\/www.fwhtlaw.com\/blog\/?p=5533"},"modified":"2026-07-24T13:40:17","modified_gmt":"2026-07-24T13:40:17","slug":"a-bid-for-constitutionality","status":"publish","type":"post","link":"https:\/\/www.fwhtlaw.com\/blog\/2026\/07\/02\/a-bid-for-constitutionality\/","title":{"rendered":"A Bid for Constitutionality"},"content":{"rendered":"\n
By Matthew T. Collins, Elena M. Senftner and law clerk Cassidy P. Hartig<\/h6>\n\n\n\n
Matt Collins and Elena Senftner are members of the firm\u2019s Construction Law Department. Matt can be reached at 612.359.7610 or mcollins@fwhtlaw.com<\/a>. Elena can be reached at 612.359.7689 or esenftner@fwhtlaw.com.<\/a><\/h6>\n\n\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Since it started at the federal level in 1987, Disadvantaged Business Enterprise (\u201cDBE\u201d) programs have played a significant role in the award of most state, county and municipal public procurements.\u00a0 Good faith efforts \u2013 often in the eye of the beholder \u2013 could make or break a contractor\u2019s bid.\u00a0 The U.S. Supreme Court’s decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College<\/em>, 600 U.S. 181 (2023), addressed university admissions rather than government contracting. \u00a0Nevertheless, its reasoning has prompted courts and government agencies to reexamine race-conscious DBE programs under the Equal Protection Clause.<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 On May 28, 2026, the Metropolitan Council (\u201cMet Council\u201d) issued a bid protest rejection letter stating that the U.S. Supreme Court\u2019s decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College <\/em>(\u201cSFFA v. Harvard<\/em>\u201d) and the Equal Protection Clause of the Fourteenth Amendment does not apply to Met Council\u2019s Metropolitan Council Underutilized Business (\u201cMCUB\u201d) contract requirements.\u00a0 Met Council reasoned that because the MCUB program is state funded rather than federally funded, SFFA v. Harvard<\/em> did not apply.\u00a0 Although low-bidder New Look Contracting, Inc. (\u201cNew Look\u201d) decided not to further challenge its bid protest, this case study provides insight into the continued reliance on legacy DBE programs that are not narrowly tailored to a compelling government interest at taxpayers\u2019 expense.<\/p>\n

 <\/p>\n

SFFA v. Harvard<\/em> Casts Doubt on Traditional DBE Programs<\/strong><\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Before 2023, courts relied on Adarand Constructors, Inc. v. Pe\u00f1a<\/em>, where the U.S. Supreme Court assumed racial classifications were unconstitutional. 515 U.S. 200, 227 (1995). The case did not determine whether DBE programs met that rigorous standard. Id<\/em>. The Court only noted that the government \u201cis not disqualified\u201d from responding to racial discrimination. Id<\/em>. at 237. Courts understood this case to require careful analysis of DBE programs but not to ban them. Sherbrooke Turf, Inc. v. Minnesota Dep’t of Transp.<\/em>, 345 F.3d 964, 969 (8th Cir. 2003). Then, a few years ago, the Supreme Court clarified its rule on racial discrimination.<\/p>\n

\u00a0<\/strong><\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 In 2023, the U.S. Supreme Court issued the SFFA v. Harvard <\/em>opinion. In the case, the Court held Harvard’s race-based admissions program unconstitutional under the Equal Protection Clause.\u00a0 600 U.S. at 231.\u00a0 Although the case arose in the university admissions context, its reasoning has since been invoked by courts and federal agencies evaluating race-conscious government contracting programs.\u00a0 <\/em>Through a robust illustration of past decisions, \u201c[The Supreme Court] recognized [] repeatedly [that the] \u2018clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.\u2019\u201d Id<\/em>. at 206. (quoting Loving v. Virginia<\/em>, 388 U.S. 1, 10 (1967)). In other words, the Court held that the Fourteenth Amendment applies to states and protects all races from discrimination.<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Although SFFA v. Harvard<\/em> arose in the university admissions context, the Court reiterated longstanding Equal Protection principles governing all governmental racial classifications. \u00a0Those principles\u2014including strict scrutiny, measurable objectives, and meaningful judicial review\u2014have become the framework through which courts are evaluating race-conscious procurement programs.<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 The first significant application of SFFA v. Harvard<\/em> to a federal DBE program came in Mid-America Milling Company, LLC v. United States Department of Transportation<\/em>, where the Kentucky federal district court held that the ruling in SFFA v. Harvard <\/em>applied to DBE programs, so the race and gender presumptions were unconstitutional. No. 3:23-CV-00072-GFVT, 2024 WL 4267183, at *10 (E.D. Ky. Sept. 23, 2024), opinion clarified, No. 3:23-CV-00072-GFVT, 2024 WL 4635430 (E.D. Ky. Oct. 31, 2024), and order dissolved, No. 3:23-CV-00072-GFVT, 2026 WL 777407 (E.D. Ky. Mar. 19, 2026). The court stopped the U.S. Department of Transportation (\u201cUSDOT\u201d) from requiring race and gender requirements in its contracts that Mid-America bid. Id<\/em>. at *13.<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 The decision in Mid-America Milling<\/em> was a wake-up call for the federal government. USDOT responded by issuing an Interim Final Rule (\u201cIFR\u201d) in October of 2025. The IFR \u201cremoves race- and sex-based presumptions of social and economic disadvantage\u201d from DBE programs because those presumptions violate the Fourteenth Amendment. 49 C.F.R. pts. 23, 24 (2025). The IFR requires states to recertify DBEs through individualized evidence and decertify those who do not meet the new requirement. Id<\/em>. Until the recertification process is complete, the IFR halts DBE goals. Id<\/em>. This is the political setting where contractors and subcontractors find themselves today: USDOT has suspended the use of race- and sex-based presumptions while states complete the reevaluation process.<\/p>\n

 <\/p>\n

Minnesota\u2019s Metropolitan Council Continues to Rely on Legacy DBE Classifications<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Some local government entities have not entirely removed DBE reliance in bidding, despite the constitutional questions surrounding those programs after SFFA v. Harvard<\/em>. \u00a0Met Council requires contractors who bid on their projects to meet the MCUB program participation goal or show a good faith effort to do so. \u00a0As a member of the Minnesota Unified Certification Program (\u201cMNUCP\u201d) and a government entity, Met Council cannot set DBE goals until MNUCP completes the reevaluation process under the IFR. MNUCP, About the DBE Program<\/em>, https:\/\/mnucp.org\/about\/about-the-dbe-program\/ (last visited June 23, 2026). However, Met Council relies on DBE certification as one of the four ways a contractor can qualify as an MCUB. \u00a0<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Met Council is only partway through its reevaluation plan, with twenty-seven decisions left mid-way through June of 2026. Sean Skibbie, DBE Program Update at the Minnesota State Bar Association 2026 Construction Law Forum (June 16, 2026). By continuing to rely on pre-reevaluation DBE classifications, Met Council exposes the program to constitutional challenge.\u00a0 Met Council’s continued reliance on those classifications raises significant constitutional questions and may limit competition among otherwise responsive, responsible bidders.\u00a0<\/p>\n

\n

Met Council\u2019s Rejection of New Look\u2019s <\/strong><\/p>\n

Bid Protest Relied on Earlier Equal Protection Precedent<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 On May 13, 2026, New Look, as the low, responsible, and responsive bidder, issued a bid protest to Met Council after it lost the award of a contract for failing to demonstrate so-called good faith efforts to secure MCUB participation. \u00a0Although New Look was the apparent low bidder, Met Council did not award it the contract because New Look failed to demonstrate compliance with the MCUB participation requirements. \u00a0New Look contended that those requirements violated the Fourteenth Amendment. \u00a0At bid time, New Look did not submit evidence of a good faith effort to meet the MCUB program because it understood that all DBE-type programs were on hold and MNUCP agencies could not set DBE goals on projects \u201csolicited on or after October 3, 2025.\u201d \u00a0MNUCP, DBE\/ACDBE Reevaluation Process FAQs<\/em>, 1, 1 (2026), https:\/\/mnucp.org\/media\/5ndjyjwe\/mnucp-dbe-acdbe-reevaluation-process-faqs.pdf<\/a>. \u00a0New Look argued that, under SFFA v. Harvard<\/em>, Mid-America Milling<\/em>, and the IFR, the solicitation should not have included DBE-based participation goals since Met Council received bids for this project on April 30, 2026.<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 In its rejection of the bid protest, Met Council stated that because Minnesota statutes allowed the creation of its MCUB program, the holding in SFFA v. Harvard<\/em> did not apply.\u00a0<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 The decision in SFFA v. Harvard<\/em> identified, however, several fundamental flaws in many DBE-type programs.\u00a0 First, any compelling interest underlying these programs must be subjected to meaningful judicial review that allows courts to measure the goals and know when the goals have been reached.\u00a0 600 U.S. at 214.\u00a0 Second, the DBE-type programs must have a \u201clogical end point\u201d to satisfy the Equal Protection Clause of the Fourteenth Amendment.\u00a0 Id.<\/em> at 221.<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Rather than justify its MCUB program based on the requirements set forth in SFFA v. Harvard<\/em>, Met Council relied upon the thirty-year-old decision in Adarand Constructors, Inc. v. Pena<\/em>, 515 U.S. 200 (1995) to claim the program remained legal.\u00a0 Moreover, Met Council stated that because SFFA v. Harvard <\/em>did not directly overrule Adarand<\/em>, it would not consider SFFA v. Harvard<\/em> binding precedent.\u00a0\u00a0 Further, Met Council stated that the case in Mid-America Milling<\/em> did not apply to Minnesota to argue that its bid procurement process was lawful. By combining the two, Met Council implied the Supreme Court approved of previous DBE program (\u201cAdarand <\/em>ultimately ruled<\/u> that the DBE Program satisfied [the Supreme Court\u2019s analysis requirement].\u201d Emphasis added).<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 The Supreme Court has made no such ruling, yet Met Council doubled down on its DBE position, arguing that \u201cunless and until Adarand<\/em> is reversed, the MCUB program remains valid.\u201d \u00a0That position overstates Adarand<\/em>. The Supreme Court did not uphold the specific DBE program at issue; rather, it held that racial classifications are subject to strict scrutiny.\u00a0 Nor does the 30-year-old case contradict SFFA v. Harvard<\/em>. \u00a0On the contrary, SFFA v. Harvard <\/em>cites Adarand <\/em>when establishing the level of analysis required under the law. 600 U.S. at 206. \u00a0Although Adarand<\/em> established strict scrutiny for racial classifications, SFFA v. Harvard <\/em>provides the Supreme Court’s most recent articulation of how that scrutiny operates. \u00a0The United States DOT’s Interim Final Rule reflects the federal government’s view that existing DBE regulations required modification following SFFA v. Harvard<\/em>.\u00a0 Whether the MCUB program should likewise be modified presents the central constitutional question discussed in this article.<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Met Council cited another case called Sherbrooke Turf, Inc. v. Minnesota Dept of Transportation<\/em>. The court decided that case long before SFFA v. Harvard<\/em>, though, so it could not apply the current law. The federal government’s response following SFFA v. Harvard<\/em> raises constitutional questions that Sherbrooke Turf<\/em> did not have occasion to address. \u00a0The IFR’s removal of race- and sex-based presumptions also calls into question whether legacy DBE classifications continue to satisfy the \u201cproper purpose\u201d analysis discussed in Sherbrooke Turf<\/em> and relied upon by Met Council.<\/p>\n

 <\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Met Council claimed in its response to the bid protest that \u201cDBE Statutes and Regulations do not apply to state-funded MCUB Projects.\u201d Under this argument, Met Council claims the DBE and MCUB programs are \u201centirely separate,\u201d while adopting the DBE program into the MCUB program. The result implies that Met Council, as a government entity, is somehow exempt from following the U.S. Constitution and federal law, but that is not the case. The Fourteenth Amendment and federal constitutional precedent apply to all government entities, whether state or federal, no matter where their funding originates.<\/p>\n

 <\/p>\n

Conclusion<\/strong><\/p>\n

\u00a0<\/strong><\/p>\n

\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Whether courts ultimately conclude that MCUB complies with the Equal Protection Clause remains to be seen. What is clear, however, is that SFFA v. Harvard<\/em>, Mid-America Milling<\/em>, and USDOT’s Interim Final Rule have fundamentally altered the legal landscape. Public owners should ensure that procurement practices reflect evolving constitutional requirements, and contractors should carefully evaluate bid requirements that continue to rely on legacy DBE classifications.\u00a0\u00a0 Until appellate courts provide further guidance, disputes over the continued use of legacy DBE classifications are likely to remain a recurring feature of public procurement litigation.<\/p>\n\n\n

Announcements<\/u><\/strong><\/p>\n\n\n\n

Fabyanske, Westra, Hart & Thomson, P.A. <\/strong>has been ranked as a Band 1 Construction Law Firm in Minnesota <\/strong>by the well-recognized Chambers <\/strong>professional rating service.<\/p>\n\n\n\n