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OIG Bulletin, November 2020: Workforce Participation Goals for Minorities and Women

Submitted by Deborah Anderson, Assistant Attorney General, Office of the Attorney General, Fair Labor Division

Table of Contents

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Workforce Participation Requirements

All contracts by a state agency or state-assisted contracts for design, construction, reconstruction, installation, demolition, maintenance or repair must contain Workforce Participation Goals for minorities and women. This is required by M.G.L. c. 149, § 44A(2)(G).

A “state-assisted contract” is a construction project undertaken by a political subdivision of the Commonwealth or two or more subdivisions thereof for planning, acquisition, design, construction, demolition, installation, repair or maintenance whose costs are paid for, reimbursed, grant funded, or otherwise supported, in whole or in part, by the Commonwealth.

The Workforce Participation requirements are distinct from the Affirmative Marketing Program (AMP), which applies to design and construction projects undertaken by certain state agencies as well as state-funded municipal projects. The AMP only applies to vertical construction and sets goals for participation by entities owned by minorities and women (M/WBE). Workforce Participation Goals apply to both vertical and horizontal construction and refer to the makeup of the contractor’s workforce rather than the ownership of the business entity.

The Workforce Participation Goals are currently set at 6.9% for women and 15.3% for minorities. More information is available in the Administration & Finance administrative bulletin Equal Opportunity and Non-discrimination on State and State- Assisted Construction Contracts (A&F 14).

An affected awarding authority’s bid documents must include a reference to the specific goals that will be contained in the contract. The contract must also include the processes and procedures to ensure compliance with the Workforce Participation Goals, including reporting and enforcement provisions. M.G.L. c. 149, § 44A(2)(G).

Any interested party may bring a bid protest to the Bid Unit at the Attorney General’s Office if the required language is not included in the awarding authority’s bid documents and contracts. If the bid documents and contracts do not comply with the law, they will be subject to a ruling that they should be revised to include the required goals and processes. A re-bid of the project may also be ordered.

Awarding authorities should ask their local counsel to draft sample language to include in bid documents and contracts consistent with Massachusetts law and municipal ordinances.
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