Derailing Affirmative Action

Randy Pech says the government's disadvantaged business programs discriminated against his company. This fall, the U.S. Supreme Court will decide if he's right.

Shortly before nine in the evening, with just a trace of light left in the sky, several Adarand Constructors trucks stand in the left lane of Interstate 25 north of Monument Hill. A dozen workers -- evenly split between whites and Hispanics, and all wearing safety vests, goggles, hardhats and boots -- set up their floodlights, which illuminate a quarter-mile stretch of road with the intensity found at a sports stadium.

Moments later, Adarand owner Randy Pech -- a 47-year-old in khakis, a burgundy polo shirt and loafers -- arrives to visit the troops. Although his foreman will oversee the actual labor, Pech shakes hands with the men. He then consults with the crew boss, who tells Pech that one guy brought his cell phone. "They're here to work, not talk to their girlfriends," Pech says, ordering his foreman to pass the message along.

Over the next month, the Adarand crews will install a 20,000-foot stretch of guardrail along this portion of the highway, where a wide, shallow grass ditch separates the northbound and southbound lanes and drivers often make ill-advised U-turns. On a good night, the team can install 1,000 feet of steel. They rely on a post-driver -- a giant hammering machine mounted on the back of a truck -- that starts with a whine and a billow of smoke. Workers lay out the posts in six-foot, three-inch intervals, and then an operator positions the pile-driver over one six-foot steel shaft after another. The clanging hammer sinks each post into the ground with four or five blows. Once the posts are in place, workers fasten small wood blocks to either side, then bolt the guardrails to the uprights with heavy pneumatic air wrenches. Afterward, the post-driver operator will check out the newly installed guardrail to make sure it's properly aligned.

Pech used to be at the helm of the big post-pounding machine, working into the early hours as deafening traffic roared by. But now, after fifteen minutes on the job site, he's satisfied and heads his Pontiac Bonneville back home toward Colorado Springs. He doesn't miss the work, he says, "not in the slightest."

Though low-key in appearance, Pech is a successful businessman. The 25-year-old Adarand has done nearly $26 million in guardrail business in the state since 1991, more than any other Colorado guardrail company during the same period. Yet Pech sees himself as a victim of discrimination by the federal and state governments, and for over a decade he's been seeking to overturn affirmative- action programs.

His crusade began in 1989, after his low bid on a federal contract was rejected in favor of one from another company, Gonzales Construction of Dolores. Gonzales, a Hispanic-owned firm, was awarded the job under an affirmative-action program overseen by the U.S. Department of Transportation. Pech, who is white, sued the federal transportation department in 1990, claiming the program was unconstitutional. This fall, the U.S. Supreme Court will consider Pech's complaint for the third -- and probably the last -- time.

If the justices rule in his favor, they could upset more than a generation of governmental attempts to reverse the effects of discrimination.


When George Pech, an ex-welder, called his son one day in 1976 and asked if he wanted to help start a guardrail company, the timing was perfect. The younger Pech had reached a crossroads at the University of Northern Colorado, where he was studying to become a gym teacher; he was ambivalent about being in front of a class full of kids, a senior-year requirement. So Pech, who had never before thought about building guardrails, told his father he was in. "It sounded good to me," he says.

Pech dropped out of UNC and went home to Colorado Springs to help with Adarand Constructors. (The name was a play on the younger Pech's first name and the last name of another founder, Tom Adams.) George Pech put up his retirement savings as collateral. Four banks turned down the fledgling company's requests for a loan -- even though a friend served on one bank board -- before a fifth loaned the Pechs $50,000.

The elder Pech soon turned the reins over to his son, and after Adams left, Adarand became a one-man show. Randy Pech struggled to learn the ins and outs of his new profession as he bid on jobs at night and ran them during the day, employing a single crew. At the time, Adarand had one pickup, one trailer and one post-driver. The novice businessman almost went broke on his first job, installing rail along the road leading into Golden Gate Canyon State Park. The work, projected for three weeks, took three months, because Pech was using a machine that moved dirt -- and up in the high country, the surface was all rock. It also took him weeks to discover that he lacked an essential tool of the business, the 1 1/4-inch wrench. It was like playing tennis without a racquet.

Still, by the early '80s, Adarand had become a competitor in a small segment of the state's lucrative highway construction industry. But within a few years, Pech noticed that he was losing contracts to disadvantaged business enterprises (DBEs), companies that were majority-owned by women or minorities and therefore presumed to be at a disadvantage in competing for government contracts.

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