Change the Bar Without Lowering It

Before we decided whether to bid on a public procurement disparity study, we did what we always do at the go-or-no-go stage. We pulled the public data and built a working analysis of the market. The disparities were about what we expected. The loop underneath them was the part that stayed with us. A firm cannot win the work because it has not won the work before. It is the paradox of being asked to show identification in order to obtain identification.

The Best Way to Find a Barrier Is to Have Stood at One

A procurement disparity study exists to find the barriers that keep capable firms out of public contracts. One of the most common barriers it examines is the experience requirement, the rule that asks a firm to have already done a thing before it is allowed to do that thing. The application to perform the study often contains its own version of that rule: show us several prior studies of the same kind.

We had built the analysis, assembled the experts, and could do the work. What we did not hold was the one credential the work itself confers. For a moment we were standing inside the dynamic the study is meant to measure. That turns out to be a useful place to stand. A team that has felt the screen it is asked to study will build a sharper instrument for finding it in someone else's contracting.

Capability Lives in People. A Firm-Experience Bar Measures Something Else.

The quality of a disparity study is produced by people. It comes from the econometrician who specifies and tests the disparity ratios, the survey methodologist who designs the availability instrument, the legal scholar who frames narrow tailoring, and the analysts who build and verify the data. Economists call that productive capability human capital, and it is held by individuals.

A firm's record of prior contracts is something different. It reflects, in large part, social capital, the relationships and access through which a firm wins its first opportunities and then compounds them into a track record. A buyer procuring a study is paying for the first. A firm-experience requirement measures the second.

Two Kinds of Barrier, and the Law Reaches Only One

Glenn Loury, in The Anatomy of Racial Inequality, draws the distinction that matters here. He separates discrimination in contract, the formal and now largely unlawful denial of opportunity in market transactions, from discrimination in contact, the informal and entirely legal patterns of networking and association that decide who is introduced, mentored, and given the first chance. Civil-rights law reaches most of the first. The second is the more durable barrier, because it governs who gets to develop and deploy their talents at all.

A firm-experience requirement is a rule in the contract domain. With no substitute allowed, it quietly imports the contact-domain barrier into the procurement. It credits the firms whose owners already had the access to win an early contract, and it screens out firms whose people hold the same capability but were never extended that first opportunity.

The mechanism is not about race alone. It runs against anyone outside the incumbent networks, including rural founders, first-generation professionals, veterans, and small and emerging firms of every kind. That is why the fix is race-neutral on its face, and sturdier for it.

Change the Bar Without Lowering It

Move the test to where the quality actually lives. Verify capability through the named people who will do the work, their credentials and prior results, and through demonstrated work on the task itself. Let key-personnel experience, including experience earned at other firms, satisfy the requirement. Count teaming and joint-venture experience. The standard stays at least as protective of quality, and the field of who can clear it grows wider and more diverse.

Two ways to set the same bar:

• The bar today. The firm must have completed several prior studies. It rewards incumbency, screens out capable newcomers, and measures social capital.
• The bar that works. The named people and the demonstrated work carry the experience. It rewards capability that can be verified, opens the first door instead of locking it, and measures human capital.

This is not a novel ask. Federal procurement already credits the experience of a firm's people. FAR 15.305(a)(2) directs evaluators to consider the experience of key personnel and predecessor firms, and the Small Business Administration's rules require agencies to credit the past performance a small firm earned as a joint-venture member or first-tier subcontractor (13 C.F.R. 125.8(e) and 125.11, and Section 868 of the FY2021 National Defense Authorization Act). The mechanism is established and proven. It is simply not yet the default at the state and local level.

Equal Opportunity Is the Bar That Matters

A disparity study, done lawfully, is not about guaranteeing outcomes. Under City of Richmond v. Croson, and after Students for Fair Admissions, its defensible purpose is to find and remove identified barriers so that every capable firm can compete on fair terms. Outcomes are shaped by countless choices and circumstances beyond what any single program can engineer. Opportunity is different. It can be measured, and it can be widened.

We think of this as narrowly tailored, opportunity-focused remedies: evidence-led, and focused on opening the first door rather than guaranteeing the last result. A buyer that credits capability over incumbency is not lowering its standard. It is applying the standard to the thing it is actually buying.

We Replace Study Volume With Substance

Where a firm cannot offer the longest history of completed studies, it can offer two things the work actually needs. The first is a live, public analysis of the buyer's own market, built from Census and government data before asking for the contract. The second is a bench of scholars who have led and defended this kind of work. For our pursuit of the Fairfax County procurement disparity study, we built exactly that, and every figure traces to a named public source.

The analysis is public, and so is the reasoning behind it. Open it, check the figures against their sources, and decide for yourself whether the capability is real. That is the whole argument: judge the work, not the length of the resume.