Under STURAA, recipients of federal funds must set an overall goal of ten percent or more for participation by DBEs. Where a state seeks to impose an overall goal of less than 10%, the regulations specifically set forth the necessary information which must be supplied to justify such a request. See 49 C.F.R. section 23.65. The regulations also clearly contemplate that recipients may set a goal larger than the 10% minimum, so long as the figure is "practical and related to the availability of DBEs in desired areas of expertise." 49 C.F.R. section 23.45(g). The Court, however, need not resolve at this time whether the 37% figure is outside the bounds of federal authority under STURAA since it appears that the legislative findings of discrimination in the local construction industry which were analyzed in connection with the Minority Contracting Act may also justify a 37% set-aside goal for federally funded construction projects.
As with the MBE program, Croson here argues that the DBE program is not narrowly tailored as applied. O'Donnell contends that since 1987 approximately 49% of all federally funded road construction contracts have been reserved for DBEs. See Fifth Affidavit of Arnold J. O'Donnell, dated January 29, 1991. For the reasons discussed in connection with the MBE program, the Court believes that a substantial question has been raised regarding whether in practice the DBE program unduly burdens non-minorities; however, further inquiries must be made by this Court before a determination can be made whether the DBE program is sufficiently narrowly tailored.
For the foregoing reasons, the Court concludes that O'Donnell has not demonstrated that it is likely to prevail on the merits of its claim that the DBE program is an unconstitutional violation of the equal protection clause.
D. Irreparable Injury, Harm to Other Parties & the Public Interest
Having concluded that O'Donnell has not demonstrated that it is likely to prevail on the merits of its claims that the District's MBE and DBE programs are unconstitutional, the Court must now turn to the other three Holiday Tours factors to determine whether injunctive relief is warranted.
First, the irreparable injury issue does not weigh in favor of granting a preliminary injunction. O'Donnell alleges two types of irreparable injury. He asserts that the alleged violation of constitutional equal protection rights constitutes irreparable harm. This argument must be rejected in view of the fact that O'Donnell has not persuaded the Court that it is likely to succeed on its claim of constitutional violations. O'Donnell also contends that if the set-aside programs continue to operate during the pendency of this suit, it would be difficult to prove money damages. The Court must reject this argument as well. "Conjecture about a possibility of difficulties with damage computations is inadequate to support an injunction before trial. Because plaintiff presented no evidence on the issue, we cannot agree that irreparable injury is 'apparent'. In addition, that difficult damage calculations 'may' occur is not enough." Northeastern Florida Chapter of Ass'n of General Contractors v. City of Jacksonville, Fla., 896 F.2d 1283, 1286 (11th Cir. 1990) (reversing issuance of injunction prohibiting enforcement of minority set-aside ordinance on grounds that plaintiff had not made showing of irreparable injury) (citing Sampson v. Murray, 415 U.S. 61, 88-89, 94 S. Ct. 937, 951-52, 39 L. Ed. 2d 166 (1974)).
Second, it does not appear that the balance of hardships tips sharply in O'Donnell's favor. At most, O'Donnell would suffer lost profits if there were a wrongful denial of a preliminary injunction. The harms that others will incur is primarily monetary also. For the District, although an injunction would not halt completion of construction projects, it would result in construction delays and increased administrative costs because of necessary changes in bid specifications. The economic harm to affected MBEs and DBEs is also not minimal.
Finally, the public interest does not favor the granting of injunctive relief. The public has a strong interest in remedying discrimination in the local construction industry. Since the Court has found that O'Donnell does not have a likelihood of succeeding on the merits of its claim that the challenged set-aside programs are unconstitutional, it follows that enjoining the implementation of these programs is not in the public interest.
Accordingly, it is hereby
ORDERED that plaintiff's motion for a preliminary injunction is denied.