Full opinion text
ORDER RODRIGUEZ, District Judge. On this date, the Court considered Plaintiffs motion for summary judgment (Docket No. 301) and Defendants’ joint motion for summary judgment (Docket No. 318). For the reasons discussed below, Defendants’ joint motion for summary judgment is GRANTED, and Plaintiffs motion for. summary judgment is DENIED. The Clerk is instructed' to keep this case open. The 1207 Program was originally enacted by Congress on November 14, 1986. It was reauthorized in 1989, 1992, 1999, and 2002, the last reauthorization being January 6, 2006. The Court finds that the 2006 Reauthorization of the 1207 Program satisfies the requirements of strict scrutiny. Congress had a compelling interest when it reauthorized the 1207 Program in 2006, and that compelling interest was supported by a strong basis in the evidence. Furthermore, the Court finds that the 2006 Reauthorization of the 1207 Program is narrowly tailored. TABLE OF CONTENTS I.FACTUAL & PROCEDURAL BACKGROUND..:........................... 780 A. Introduction..........................................................780 B. Facts.................................................................781 C. Relief requested by Rothe in its motion for summary judgment...........783 D. The 2006 Reauthorization of the 1207 Program...........................783 1. The 1207 Program, 10 U.S.C. § 2323..................................784 2. The 1207 Program cross-references Section 8(a) and 8(d) of the Small Business Act, 15 U.S.C. §, 637 ...............................786 3. Title 13 of the Code of Federal Regulations, “Business and Credit Assistance” .....................................................786 4. Title 48 of the Code of Federal Regulations, “Federal Acquisitions Regulations System”............................ 789 5. Intervening regulatory changes to the 1207 Program..................790 a. PEA Regulations..............................................791 b. Economic disadvantage regulations were amended to require an individualized showing of economic disadvantage for all SDB applicants................................ 793 c. Social disadvantage regulations were amended to lower the burden of proof required for non-minority small businesses to qualify as SDBs............................................793 E. Procedural History....................................................794 1. Plaintiffs First Amended Complaint................................794 2. Rothe I, 49 F.Supp.2d 937 (W.D.Tex.1999) (Prado, J.)..................795 3. Rothe II, 194 F.3d 622 (5th Cir.1999).................................800 4. Rothe III, 262 F.3d 1306 (Fed.Cir.2001)...............................801 5. Rothe TV, 324 F.Supp.2d 840 (W.D.Tex.2004) (Rodriguez, J.)............805 6. Rothe V, 413 F.3d 1327 (Fed.Cir.2005) ................................811 7. Procedural history after the Rothe V remand........................813 II. LEGAL ANALYSIS........................................................815 A. Summary Judgment Standard of Review ................................815 B. Little Tucker Act Claim ...............................................816 C. The Court will not consider the facial constitutionality of the 1999 and 2002 Reauthorizations of the 1207 Program because those claims are moot. Those claims have also been waived on appeal and are outside the scope of remand. Furthermore, consideration of those claims is barred by the law of the case doctrine.................818 1. Rothe’s claims regarding the constitutionality of the 1999 and 2002 Reauthorizations are moot...................................819 2. Rothe’s claims regarding the constitutionality of the 1999 and 2002 Reauthorizations are outside the scope of remand. Consideration of those claims is barred by the doctrines of waiver and law of the case...............................................823 D. The Eighth, Ninth, and Tenth Circuits have evaluated similar affirmative action programs under Croson, and the legal analysis contained in those opinions is relevant to this Court’s evaluation of the facial constitutionality of the 2006 Reauthorization to the extent that their holdings do not conflict with the law of the case......825 1. Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513 (10th Cir.1994) (“Concrete Works II”)....................828 2. Concrete Works of Colorado, Inc. v. City and County of Denver, 321 F.3d 950 (10th Cir.2003) (“Concrete Works TV”).....................830 3. Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir.2000) (“Adarand VII ”), cert, denied as improvidently granted, 534 U.S. 103 (2001)...................................................832 4. Sherbrooke Turf, Inc. v. Minnesota Dep’t of Transp., 345 F.3d 964 (8th Cir.2003), cert, denied 541 U.S. 1041 (2004)......................832 5. Western States Paving Co., Inc. v. Washington State Dep’t of Trans., 407 F.3d 983 (th Cir.2005), cert denied 126 S.Ct. 1332 (2006)...........................................................832 6. Inter-circuit conflict regarding strict scrutiny analysis...............832 7. Recent Supreme Court Cases: Carhart & Parents Involved ............833 a. Gonzales v. Carhart, 127 S.Ct. 1610 (April 18, 2007)................834 b. Parents Involved in Community Schs. v. Seattle Sch. Disk No. ■ 1, 127 S.Ct. 2738 (June 28, 2007)................................835 E. Congress had a compelling interest in reauthorizing the 1207 Program in 2006, which was supported by a strong basis in the evidence. :......................................._...................835 1. Six state and local disparity studies were before Congress prior to the 2006 Reauthorization of the 1207 Program......................835 2. City of New York Disparity Study, Mason Tillman Associates, Ltd. (January 2005) ................... 840 a. Availability Analysis...........................................840 b. Introduction: Disparity Analysis................................842 c. Disparity Analysis: Construction Prime Contractors..............843 d. Disparity Analysis: Architecture and Engineering Prime Contracts ................................ 843 e. Disparity Analysis: Professional Services Prime Contracts........844 f. Disparity Analysis: Standard Services Prime Contracts...........844 g. Disparity Analysis: Goods Prime Contracts......................845 h. Disparity Analysis Summary: Prime Construction, Architecture, and Engineering Contracts under $50,000 and Prime Professional Services, Standard Services, and Goods Contracts under $25,000 .......................................845 i. Disparity Analysis Summary: Subcontracts ......................845 j. Anecdotal evidence.............................................846 k. Rothe’s rebuttal evidence concerning the New York Study.........846 3. Alameda County Availability Study, Mason Tillman Associates, Ltd. (October 2004) ...................... 848 a. Disparity Analysis: Construction Prime Contracts................849 b. Disparity Analysis: Architecture and Engineering Prime Contracts ...................................................849 c. Disparity Analysis: Professional Services Prime Contracts........849 d. Disparity Analysis: Goods and Other Services Prime Contracts ...................................................850 e. Disparity Analysis: Construction Subcontracts...................850 f. Disparity Analysis: Architecture and Engineering Subcontracts ................................................850 g. Disparity Analysis: Professional Services Subcontracts...........851 4. Ohio Multi-Jurisdictional Disparity Studies, Mason Tillman Associates, Ltd. (October 2003)....................................851 a. Disparity Analysis: Vertical Construction Prime Contracts under $500,000 and under $15,000 ..............................851 b. Disparity Analysis: Horizontal Construction Prime Contracts under $500,000 and under $15,000 ..............................852 c. Disparity Analysis: Architecture and Engineering Prime Contracts under $500,000 and under $25,000 ....................852 d. Disparity Analysis: Professional Services Prime Contracts under $500,000 and under $15,000 ..............................853 e. Disparity Analysis: Goods and Other Services Prime Contracts under $500,000 and under $15,000 ....................853 f. Disparity Analysis: Construction Subcontracting.................854 5. City of Dallas Availability and Disparity Study, Mason Tillman Associates, Ltd. (May 2002).......................................854 a. Disparity Analysis: Construction Prime Contracts less than $500,000 and less than $15,000 .................................855 b. Disparity Analysis: Architecture and Engineering Prime Contracts less than $500,000 and less than $15,000...............856 c. Disparity Analysis: Professional Services Prime Contracts less than $500,000 and less than $15,000 ........................856 d. Disparity Analysis: Goods and Other Services Prime Contracts less than $500,000 and less than $15,000...............857 e. Disparity Analysis: Subcontracts................................858 6. City of Cincinnati Disparity Study: Griffin & Strong, P.C. (October 2002)......................................'.............859 a. Anecdotal evidence of discrimination in City contracting..........860 b. Statistical evidence of discrimination in City contracting..........861 7. A Procurement Disparity Study of the Commonwealth of Virginia, MGT of America (January 2004)..........................862 8. Dissenting Statement of Commissioner Michael Yaki, Federal Procurement after Adarand, U.S. Commission on Civil Rights (September 2005) ................................................864 9. Additional evidence before Congress found in Congressional Committee reports and hearing records............................865 10. Evidence before Congress concerning the systematic barriers facing small minority businesses..................................869 11. SBA Reports that were before Congress prior to the 2006 Reauthorization.................. 871 a. The Small Business Economy: A Report to the President (2005).......................................................871 b. The State of Small Business: A Report to the President (2000).....871 c. Yin Lowrey, Ph.D., Office of Advocacy, Dynamics of Minority-Owned Employer Establishments, 1997-2001 (February 2005)..............................................871 12. Because the data contained in the Appendix, the Benchmark Study, and the Urban Institute Report is stale, the Court will not consider those reports as evidence of a compelling interest for the 2006 Reauthorization. Rothe’s expert report also raises a genuine issue of material fact as to the reliability of the methodology of the Benchmark Study.............................872 a. The Appendix..................................................872 b. Urban Institute Report.........................................874 c. Benchmark Study..............................................874 d. Based on USCCR Briefing Report and the concrete, particularized rebuttal evidence contained in Rothe’s expert reports, the Court finds that the data contained in the Appendix, the Urban Institute Report, and the Benchmark Study is stale. Rothe has also raised a genuine issue of material fact as to the reliability of the methodology of the Benchmark Study. However, Rothe has failed to raise a genuine issue of material fact as to the reliability of the methodology or the data contained in the six state and local disparity studies.......................................................875 13. Based on the statistical and anecdotal evidence of discrimination before Congress prior to the 2006 Reauthorization, the Court finds that Congress had a compelling interest in reauthorizing the 1207 Program in 2006, which was supported by a strong basis in the evidence..............................................877 F. The 2006 Reauthorization of the 1207 Program, and the present regulations implementing that program, are narrowly tailored..........878 1. Efficacy of race-neutral alternatives ................................878 2. Relationship between the stated numerical goal of five percent and the relevant market..........................................880 3. Over- and under-inclusiveness......................................882 G. Rothe is not entitled to attorney’s fees..................................883 III. CONCLUSION 883 I. FACTUAL & PROCEDURAL BACKGROUND A. Introduction This case concerns the constitutionality of Section 1207 of the National Defense Authorization Act of 1987 (the “1207 Program” or the “Act”), Pub.L. No. 99-661, 100 Stat. 3859, 3973 (1986) (as amended), codified at 10 U.S.C. § 2323, which permits the United States Department of Defense (“DoD”) to preferentially select bids submitted by small businesses owned by socially and economically disadvantaged individuals (“SDBs”). In the Act, Congress set a goal that five percent of the total dollar amount of defense contracts for each fiscal year would be awarded to small businesses owned and controlled by socially and economically disadvantaged individuals. 10 U.S.C. § 2323(a)(1)(A) & (b)(1). In order to achieve that goal, Congress authorized the DoD to adjust bids submitted by non-socially and economically disadvantaged firms by up to ten percent (the “price evaluation adjustment program” or “PEA”). 10 U.S.C. § 2323(e)(3). There is a presumption that Black Americans, Hispanic Americans, Native Americans, and Asian-Pacific Americans are socially and economically disadvantaged individuals. 15 U.S.C. § 637(d)(3)(C). Plaintiff Rothe Development Corporation (“Rothe”) did not qualify as an SDB because it was owned by a Caucasian female. Although Rothe was technically the lowest bidder on a DoD contract, its bid was adjusted upward by ten percent, and a third party, who qualified as a SDB, became the “lowest” bidder and was awarded the contract. Rothe claims that the 1207 Program is facially unconstitutional because it takes race into consideration in violation of the equal protection component of the due process clause of the Fifth Amendment. See Sherbrooke Turf Inc. v. Minn. Dep’t of Transp., 345 F.3d 964, 969 (8th Cir.2003) (holding that although the program confers benefits on “socially and economically disadvantaged” individuals, a term which is race-neutral, strict scrutiny applies because the statute presumes minorities are in that class). B. Facts This civil action was originally filed on November 5, 1998. Rothe is based in San Antonio, Texas, and is owned by Ms. Suzanne Patenaude, a Caucasian female. Since 1987, Rothe had contracted with the Department of the Air Force to maintain, operate, and repair the computer systems of the Switchboard Operations and Network Control Center (“NCC”) at Columbus Air Force Base in Mississippi. Korean-Americans David and Kim Sohn of Baltimore, Maryland, own and operate International Computer and Telecommunications, Inc. (“ICT”), a SDB with annual revenues of approximately $13 million. ICT also performs computer maintenance and repair work and was Rothe’s “number one competitor.” In an effort to improve contractor accountability and quality, the Air Force decided to consolidate Rothe’s Switchboard/NCC contract with a contract for Base Telecommunications Services (“BTS”). On March 6, 1998, the 38th Engineering Installation Wing at Tinker Air Force Base, Oklahoma, issued Solicitation F34608-98-R-0016 (“Solicitation”) for competitive bids on the combined contract, and announced that, unlike predecessor contracts, the proposed contract would be let pursuant to the 1207 Program. The Solicitation required the successful bidder to provide operation and maintenance services for Base Telecommunication System (“BTS”) and Network Control Center (“NCC”) at Columbus Air Force Base, Mississippi. The Solicitation required firm fixed price “contract line item numbers” (“CLINs”) for monthly operation of the NCC, switchboard operation, and maintenance of the BTS as well as other firm fixed price CLINs for the purchase of equipment, installation, deactivate/reactivate circuits and removal. The closing date for receipt of proposals was April 20, 1998, and the beginning of the performance period was set (after amendment) for April 1999. According to the Solicitation, the award was to be made to the bidder with the lowest evaluated price, technically acceptable offer with a positive responsibility determination if the bidder was assessed as having a low performance risk rating. If the bidder was judged to have a moderate or high performance risk rating, the Air Force reserved the right to award the contract to a bidder other than the one submitting the technically acceptable, lowest evaluated price. The Solicitation contained DFAR 252.219-7006, a federal acquisition regulation codified at 48 C.F.R. § 252.219-7006 (1997) and entitled “Notice of Evaluation Preference for Small Disadvantaged Concerns.” 48 C.F.R. 252.219-7006(b)(l) (1997), entitled “Evaluation Preference,” stated that “Offers will be evaluated by adding a factor of ten percent to the price of all offers.” Apparently, the Solicitation required firm fixed price “contract line item numbers” (“CLINs”) because the ten percent factor was “applied on a line item by line item basis or to any group of items on which award may be made.” Id. at 252.219-7006(b)(2) (1997). For purposes of the 1997 DFAR regulation, a “small disadvantaged business concern” was defined as “a small business concern, owned and controlled by individuals who are both socially and economically disadvantaged, as defined by the SBA at 13 CFR part 124, the majority of earnings of which directly accrue to such individuals.” Id. at 252.219-7000(a) (1997). Rothe was the incumbent contractor “with an excellent performance record.” Five contractors submitted bids. Two bidders were SDBs. Rothe, which was not a SDB, bid $5,573,318.00, and was the lowest bidder. ICT, which was a SDB and thus could participate in the 1207 Program, bid $5,723,495.00. Through application of the 10% price evaluation adjustment in effect at the time, Rothe’s bid was increased to $6,130,481.00 for purposes of the bid selection. On August 20, 1998, the Air Force awarded the contract to ICT, the “fictionally” lowest bidder. The parties agree that Rothe lost the bid to ICT only because of application of the PEA regulations in effect at the time of the Solicitation. Rothe Dev. Corp. v. United States Dep’t of Defense, 49 F.Supp.2d 937, 941 (1999) (“Rothe I”). The contract at issue in this ease was scheduled to expire on September 30, 1999; however, the Air Force exercised an option to extend ICT’s contract through September 30, 2001. ICT did not perform any work under the disputed contract since April 30, 1999 because the Fifth Circuit and later the Federal Circuit imposed a stay pending resolution of Rothe’s initial appeal. Despite numerous objections by Rothe, the Federal Circuit did not prevent the Government from soliciting and awarding a replacement contract without the price evaluation adjustment. As a consequence, the Air Force issued a new solicitation for the work covered by the disputed contract and awarded the new contract to an entirely different entity than the ones involved in this lawsuit. This new solicitation was not subject to the 1207 Program’s PEA. C. Relief requested by Rothe in its motion for summary judgment Rothe requests the following relief in its motion for summary judgment: (1) a declaration that the 1207 Program is unconstitutional, as reauthorized in 1999, 2002, and 2006; (2) injunctive relief, as requested in its Original and First Amended Complaint; (3) a $10,000 money judgment in satisfaction of its claim for damages under the Little Tucker Act, based upon law of the case finding the 1207 Program unconstitutional as applied to Rothe in 1998; and (4) an award of attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Pi’s MSJ, Pgs. 1-2. D. The 2006 Reauthorization of the 1207 Program Rothe requests a declaration that the 1999 and 2002 Reauthorizations of the 1207 Program were facially unconstitutional. This requested relief is outside the scope of the remand. As will be discussed more fully below, the Court finds that these claims are not justiciable. The claims are moot because a declaratory judgment on the validity of these intervening reauthori-zations is “a textbook example of advising what the law would be upon a hypothetical state of facts.” Concrete Works of Colorado, Inc. v. City and County of Denver, 321 F.3d 950, 954 n. 1 (10th Cir.2003) (“Concrete Works IV”) (citing National Advertising Co. v. City and County of Denver, 912 F.2d 405, 412 (10th Cir.1990)). In addition to the justiciability problem, the Court cannot rule on the constitutionality of the 1999 and 2002 Reauthorizations based on the doctrines of waiver and law of the case. Thus, the Court will only entertain Rothe’s facial challenge to the present (¿e. 2006) reauthorization of the 1207 Program, and Rothe’s request for prospective injunctive relief relative to the 2006 Reauthorization. The present (i.e. January 2, 2006) reau-thorization of the 1207 Program (“2006 Reauthorization”) differs in several fundamental ways from the October 23, 1992 reauthorization (“1992 Reauthorization”) that was applied to Rothe in 1998. Unlike the 1992 Reauthorization, the 2006 Reau-thorization: (1) contains a PEA suspension clause; (2) gives the Department of Commerce discretion to recalculate the size of the PEA based on available data; (3) requires an individualized determination of economic disadvantage to qualify for SDB status; (4) lowers the standard required for non-minority firms to qualify for SDB status; (5) allows any interested party to challenge a SDB certification; and (6) allows the presumption of disability to be overcome with credible evidence to the contrary. The 1207 program was initially enacted as a three-year pilot program in 1986. National Defense Authorization Act of 1987, Pub.L. No. 99-661, § 1207, 100 Stat. 3816, 3973 (Nov. 14, 1986). In 1989, Congress extended the program from 1990 until 1993. National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub.L. No. 101-189, § 831(b), 103 Stat. 1352, 1507 (Nov. 29, 1989). In 1992, Congress reauthorized the program for seven more years, through fiscal year 2000. National Defense Authorization Act for Fiscal Year 1993, Pub.L. No. 102-484, § 801(a)(1)(B), 106 Stat. 2315, 2442 (October 23, 1992). In 1998, Congress amended the 1207 program to require the DoD to suspend the use of the price-evaluation adjustment for one year after any fiscal year in which the DoD awards more than five percent of its eligible contract dollars to SDBs. This 1998 legislation added the PEA suspension provision; it did not reauthorize the program. Strom Thurmond National Defense Authorization Act for Fiscal Year 1999, Pub.L. No. 105-261, § 801, 112 Stat.1920, 2080-81 (Oct. 17, 1998). In 1999, Congress reauthorized the 1207 program for three more years. National Defense Authorization Act for Fiscal Year 2000, Pub.L. No. 106-65, § 808, 113 Stat. 512, 705 (Oct. 5, 1999). The 1207 Program was reauthorized again in 2002 and 2006, and it is currently set to expire at the end of fiscal year 2009. Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub.L. No. 107-314, § 816, 116 Stat. 2610 (Dec. 2, 2002); National Defense Authorization Act for Fiscal Year 2006, Pub.L. No. 109-163, § 842, 119 Stat. 3136 (Jan. 6, 2006). 1. The 1207 Program, 10 U.S.C. § 2323 The 1207 Program sets a “goal” that five percent of the total dollar amount obligated for defense contracts and subcontracts for each fiscal year will be awarded to businesses that (1) are “small,” and (2) are “owned and controlled by” socially and economically disadvantaged individuals (“SDBs”). 10 U.S.C. § 2323(a)(1)(A) & (b)(1) (2006). The Act defines the term “socially and economically disadvantaged” in accordance with the Section 8(d) of the Small Business Act, 15 U.S.C. § 637(d), and the regulations issued pursuant to it. Id. The Federal Acquisition Regulation (“FAR”) must provide procedures for contracting officers to set goals for prime contractors that are required to submit subcontracting plans under Section 8(d)(4)(B) of the Small Business Act, 15 U.S.C. § 637(d)(4)(B), in order to meet that five percent goal. Id. at § 2323(a)(3). To the extent practicable and when necessary to facilitate achievement of the five percent goal, the head of an agency shall: (1) provide technical assistance to SDBs; (2) make advance payments under 10 U.S.C. § 2307 to SDBs; (3) enter into contracts using less than full and open competitive procedures, including awards under section 8(a) of the Small Business Act, and partial set-asides for SDBs, but shall pay a price not exceeding fair market cost by more than ten percent in payment per contract to contractors or subcontractors classified as SDBs (“PEA authorization”); (4) prescribe regulations for contracting officers to provide incentives for prime contractors to increase subcontractor awards to SDBs; (5) prescribe regulations requiring that contracting officers emphasize the award of contracts to SDBs, in all industry categories, including those categories in which such entities have not traditionally dominated; and (6) prescribe regulations ensuring that current levels in the number or dollar value of contracts awarded under the program established under Section 8(a) of the Small Business Act, 15 U.S.C. § 637(a), and under the small business set-aside program established under Section 15(a) of the Small Business Act, 15 U.S.C. § 644(a), are maintained and that every effort is made to provide new opportunities for contract awards to eligible entities, in order to meet the five percent goal. ■ At the beginning of each fiscal year, the Secretary of Defense shall determine, on the basis of the most recent data, whether the DoD. achieved the five percent goal. 10 U.S.C. § 2323(e)(3)(B)(ii). Upon determining that the DoD achieved the goal for the fiscal year, the Secretary of Defense shall issue a suspension, in writing, of the regulations that implement the. PEA. Id. Such a suspension shall be in effect for the one-year period beginning 30 days after the date on which the suspension is issued and shall apply with respect to contracts awarded pursuant to solicitations issued-during that period. Id. To the maximum extent practicable, the head of the agency shall ensure that no particular industry category bears a disproportionate share of the contracts awarded to attain the five percent goal and ensure that contracts awarded to attain the five percent goal are made across the broadest possible range of industry categories. Id. at § 2323(g)(1). Under procedures prescribed by the head of the agency, a person may request the Secretary of Defense to determine whether the use of small disadvantaged business set asides by a contracting activity of the agency has caused a particular industry category to bear a disproportionate share of the contracts awarded to attain the goal established for that contracting activity for the purposes of this section. Id. at § 2323(g)(2). Upon making a determination that a particular industry category is bearing a disproportionate share, the head of the agency shall take appropriate actions to limit the contracting program’s use of set asides in awarding contracts in that particular industry category. Id. Any entity that misrepresents its status as an SDB in order to secure a prime contract or subcontract under the 1207 Program is subject to a term of imprisonment for not more than one year, a fine under Title 18 of the United States Code, or both. Id. at § 2323(f). 2. The 1207 Program cross-references Section 8(a) and 8(d) of the Small Business Act, 15 U.S.C. § 637 The term “socially and economically disadvantaged small business concern” means any small business concern that is at least 51% owned by one or more socially and economically disadvantaged individuals and whose management and daily business operations are controlled by one or more of such individuals. 15 U.S.C. § 637(d)(3)(C) (2006). Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities. 15 U.S.C. § 637(a)(5) (2006). Economically disadvantaged individuals are those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged. Id. at § • 637(a)(6)(A). In determining the degree of diminished credit and capital opportunities, the SBA shall consider, but not be limited to, the assets and net worth of such socially disadvantaged individual. Id. 3. Title 13 of the Code of Federal Regulations, “Business Credit and Assistance” Title 13 of the Code of Federal Regulations, Part 124, Subpart B, entitled “Eligibility, Certification, and Protests Relating to Federal Small Disadvantaged Business Programs,” defines a small disadvantaged business (“SDB”) for purposes of the 1207 Program. See 13 C.F.R. § 124.1001(b) (2007) (“Only small firms that are owned and controlled by socially and economically disadvantaged individuals are eligible to participate in Federal SDB price evaluation adjustment, evaluation factor or sub-factor, monetary subcontracting incentive, or set-aside programs, or SBA’s section 8(d) subcontracting program”); see also 13 C.F.R. § 1015(a). In determining whether a firm qualifies as an SDB, the criteria of social and economic disadvantage and other eligibility requirements established by 13 C.F.R., Part 124, Subpart A apply, including the requirements of ownership and control and disadvantaged status, unless otherwise provided in Subpart B. 13 C.F.R. § 124.1002(a). An SDB is a concern that: (1) qualifies as small under 13 C.F.R., Part 121 for the size standard corresponding to the applicable four-digit Standard Industrial Classification (“SIC”) code, (2) is at least 51% unconditionally owned by one or more socially and economically disadvantaged individuals as set forth in 13 C.F.R. § 124.105, and (3) has the majority of its earnings accruing directly to the socially and economically disadvantaged individuals. Id. at § 124.1002(b). In assessing the personal financial condition of an individual claiming economic disadvantage, his or her net worth must be less than $750,000 after taking into account the exclusions set forth in 13 C.F.R. § 124.104(c)(2). Id. at § 124.1002(c). There is a rebuttable presumption that the following individuals are socially disadvantaged: Black Americans; Hispanic Americans; Native Americans (American Indians, Eskimos, Aeuts, or Native Hawaiians); Asian Pacific Americans (persons with origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China (including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Fiji, Tonga, Kiribati, Tuvalu, or Nauru); Subcontinent Asian Americans (persons with origins from India, Pakistan, Bangladesh, Sri Lan-ka, Bhutan, the Maldives Islands or Nepal); and members of other groups designated from time to time by SBA according to procedures set forth at 13 C.F.R. § 124.103(d). Id. at § 124.103(b)(1). The presumption of social disadvantage may be overcome with credible evidence to the contrary. Id. at § 124.103(b)(3). Representatives of an identifiable group whose members believe that the group has suffered chronic racial or ethnic prejudice or cultural bias may petition the SBA to be included as a presumptively socially disadvantaged group. 13 C.F.R. § 124.103(d)(1). In determining whether a group has made an adequate showing that it has suffered chronic racial or ethnic prejudice or cultural bias for the purposes of this section, the SBA must determine that: (1) the group has suffered prejudice, bias, or discriminatory practices; (2) those conditions have resulted in economic deprivation for the group of the type which Congress has found exists for the groups named in the Small Business Act; and (3) those conditions have produced impediments in the business world for members of the group over which they have no control and which are not common to small business owners generally. Id. at § 124.103(d)(2). The SBA must find that a preponderance of the evidence demonstrates that the group has met these standards based on SBA’s consideration of the group petition, the comments from the public, and any independent research it performs. Id. at § 124.103(d)(4). An individual who is not a member of one of the groups presumed to be socially disadvantaged must establish individual social disadvantage by a preponderance of the evidence. Id. at § 124.103(c). Evidence of individual social disadvantage must include the following elements: (1) at least one objective distinguishing feature that has contributed to social disadvantage, such as race, ethnic origin, gender, physical handicap, long-term residence in an environment isolated from the mainstream of American society, or other similar causes not common to individuals who are not socially disadvantaged; (2) personal experiences of substantial and chronic social disadvantage in American society, not in other countries; and (3) negative impact on entry into or advancement in the business world because of the disadvantage. Id. at § 124.103(c)(2). In every case, the SBA will consider education, employment and business history, where applicable, to see if the totality of circumstances shows disadvantage in entering into or advancing in the business world. Id. Economically disadvantaged individuals are socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same or similar line of business who are not socially disadvantaged. Id. at § 124.104(a). Those individuals claiming disadvantaged status that are members of the same designated groups that are presumed to be socially disadvantaged for purposes of SBA’s 8(a) BD program, 13 C.F.R. § 124.103(b), are presumed to be economically disadvantaged for purposes of SDB certification. Id. at § 124.1008(e)(1). These individuals must represent that they are members of one of the designated groups, that they are identified as a member of one of the designated groups, that their net worth is less than $750,000 after taking into account the exclusions set forth in § 124.104(c)(2), and that they are citizens of the United States. Id. Absent credible evidence to the contrary, the SBA may accept these representations as true and certify the firm as an SDB. Id. In order to become certified as an SDB, a firm must apply to SBA or, if directed by SBA, to a Private Certifier. Id. at § 124.1008. The application must include evidence demonstrating that the firm is owned and controlled by one or more individuals claiming disadvantaged status, along with certifications or narratives regarding the disadvantaged status of such individuals. Id. The firm also must submit information necessary for a size determination. Id. Current 8(a) BD Participants do not need to submit applications for SDB status. Id. These concerns automatically qualify as SDBs by virtue of their status as 8(a) BD concerns. Id. An 8(a) Participant’s continuing eligibility as an SDB will be reviewed as part of the concern’s 8(a) annual review. Id. Each individual claiming disadvantaged status who is not a member of one of the designated groups must submit a statement identifying personally how his or her entry into or advancement in the business world has been impaired because of personally specific factors, 13 C.F.R. § 124.103(c), and how his or her ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities, 13 C.F.R. §§ 124.103(c) & 124.104. Id. at § 124.1008(e)(2). Once SBA certifies a firm to be an SDB by placing it on the list of qualified SDBs, the firm will generally remain on the SBA-maintained list of certified SDBs for a period of three years from the date of its certification. Id. at § 124.1014(a). To remain on the SDB register after three years, a firm whose status as an SDB has not been upheld in connection with a protest or an SBA-initiated SDB determination, or has not been certified as an eligible 8(a) Participant as part of an annual review, must submit a new application and receive a new certification. Id. at § 124.1014(c). For purposes of a particular Federal procurement, the firm must represent that it is both disadvantaged and small at the time it submits its initial offer including price. Id. at § 124.1015(b). The firm must also represent that no material change has occurred in its SDB status since its SDB certification, or from the date of its application for SDB certification if its application has not yet been processed, and must specifically represent that the net worth of the disadvantaged individuals upon whom the SDB certification was based still does not exceed $750,000. Id. A firm’s status as “disadvantaged” or “small” may be protested, provided the protest contains specific allegations that the firm’s circumstances have materially changed since SBA certified it as an SDB, or that the firm’s SDB application contained false or misleading information. Id. at §§ 124.1015(c). SBA may initiate an SDB determination whenever it receives credible information calling in question a firm’s eligibility as an SDB, including an adverse determination from a DOT recipient of the firm’s status as a DBE. Id. at § 124.1016(a). Upon its completion of an SDB determination, SBA will issue a written decision regarding the SDB status of the questioned firm. Id. The SBA, procuring activity contracting officer, or any losing bidder may protest the disadvantaged status of a successful offeror who received a preference under the 1207 Program. Id. at §§ 124.1017 — 124.1024. 4. Title 48 of the Code of Federal Regulations, “Federal Acquisitions Regulations System” Title 48 of the Code of Federal Regulations implements the Price Evaluation Adjustment (“PEA”) authorized by the 1207 Program. For purposes of the current reauthorization of the 1207 Program, the size of the PEA is determined by the Secretary of Commerce in accordance with 48 C.F.R. § 19.201(b). 48 C.F.R. § 19.1101. The Secretary of Defense is instructed to use the PEA in competitive acquisitions in the authorized North American Industry Classification System (“NA-ICS”) industry subsector, except acquisitions that are awarded pursuant to the 8(a) Program, set aside for small business concerns, or set aside for HUBZone small business concerns. Id. at § 19.1102(b), (c). The PEA as determined by the Department of Commerce is applied to all offers, except those SDBs who have not waived the PEA. Id. at § 19.1103(a).. The factor is applied to a line item or a group of line items on which award may be made. Id. at § 19.1103(b). The contract clause listed in 48 C.F.R. § 52.219-23, entitled “Notice of Price Evaluation Adjustment for Small Disadvantaged Business Concerns,” is included in all contracts let pursuant to the current reauthorization of the 1207 Program. Id. at § 19.1104. A SDB may waive the PEA preference. Id. at § 19.1202-1. The Department of Commerce will determine on an annual basis, by the NAICS industry subsector, and region, if any, the authorized SDB procurement mechanisms and applicable factors (percentages). 48 C.F.R. § 19.201(b). The SDB procurement mechanisms are a price evaluation adjustment for SDB concerns, 48 C.F.R., Subpart 19.11, an evaluation factor or sub-factor for participation of SDB concerns, 48 C.F.R. § 19.1202, and monetary subcontracting incentive clauses for SDB concerns, 48 C.F.R. § 19.1203. Id. The Department of Commerce determination shall also include the applicable factors, by NA-ICS industry subsector, to be used in the price evaluation adjustment for SDB concerns, 48 C.F.R. § 19.1104. Id. The General Services Administration shall post the PEA authorized by the Department of Commerce determination at http://www. arnet.gov/References/sdbadjustments.htm. Id. 5. Intervening regulatory changes to the 1207 Program Although this Court will only review the facial constitutionality of the 2006 Reau-thorization of the 1207 Program, a discussion of intervening regulatory changes to the program will be relevant to this Court’s narrow tailoring analysis. The following significant regulatory changes to the 120,7 Program occurred after Rothe lost its bid to ICT in 1998:(1) the PEA regulations were amended to allow the Department of Commerce to recalculate the PEA on an annual basis based on relevant empirical data; (2) the economic disadvantage regulations were amended to require an individualized showing of economic disadvantage for all SDB applicants; and (3) the burden of proof for non-minority firms to qualify as socially disadvantaged under Section 8(a) regulations was lowered from clear and convincing evidence to preponderance of the evidence, thus making it easier for non-minority firms to qualify for SDB status. In its briefing, Rothe repeatedly argued that the 1207 Program affords a presumption of social and economic disadvantage to certain racial groups. See Pi’s MSJ, Pgs. 1, 6, 7, 34, 45, 37; See Pi’s Response and Reply, Pg. 13. However, the present regulations require an individualized showing of economic disadvantage. The regulations were amended, effective January 1, 1999, to require an individualized showing of economic disadvantage for all SDB applicants. See Adarand VII, 228 F.3d at 1185. In other words, effective January 1, 1999, minority business owners were not entitled to a presumption of economic disadvantage based solely on their race. In order to qualify as economically disadvantaged, all SDB applicants must establish that their net worth is less than $750,000, after taking into account the exclusions set forth in 13 C.F.R. § 124.104(c)(2). 13 C.F.R. §§ 124.1002(c) & 124.1008(e)(1). Because the Federal Circuit directed this Court to evaluate the constitutionality of the present (ie. 2006) Reauthorization of the 1207 Program, this Court will examine the implementing regulations in their present form. a. PEA Regulations The Federal Circuit acknowledged in Rothe V that the PEA was the “mechanism most important in this case.” 413 F.3d at 1329. At the time that the 1207 Program was applied to Rothe’s bid in 1998, the PEA was fixed in the regulations at 10%, which is the maximum amount authorized by 10 U.S.C. § 2323. See 48 C.F.R. § 252.219-7006 (1997). Since that time, the regulations implementing the PEA have been substantially amended. On June 20, 1998, an interim rule was announced that amended the PEA regulations. Federal Acquisition Regulation, Reform of Affirmative Action in Federal Procurement, 63 Fed.Reg. 35719 (June 30, 1998). These FAR amendments were “designed to ensure compliance with the constitutional standards established by the Supreme Court in Adarand Constructors, Inc. v. Pena,” and they were effective for all solicitations issued on or after October 1, 1998, which was after Rothe lost its bid to ICT. Id. at 357719. The interim rule amended 48 C.F.R. § 19.201 to give the Department of Commerce the authority to recalculate the PEA on an annual basis. Id. at 35722. At present, 48 C.F.R. § 19.201(b) (2006) states, in relevant part: The Department of Commerce will determine on an annual basis, by North American Industry Classification System (NAICS) Industry Subsector, arid region, if any, the authorized small disadvantaged business (SDB) procurement mechanisms and applicable factors (percentages) .... The Department of Commerce determination shall also include the applicable factors, by NAICS Industry Subsector, to be used in the price evaluation adjustment for SDB concerns (see 19.1104). On June 30, 1998, a notice of determination concerning price evaluation adjustments was published in the Federal Register. 63 Fed.Reg. 35714 (June 30, 1998). This Department of Commerce memorandum described the methodology used by DoC for determining the price evaluation adjustment, effective October 1,1998 Id. at 35714. To establish the price evaluation adjustment in 1998, the Office of the Chief Economist and the Office of Policy Development in the Economics and Statistics Administration of the DoC conducted an economic analysis to identify industries eligible for price evaluation adjustments to implement the Administration’s proposal for reforming affirmative action in Federal procurement programs. Id. The DoC is responsible for: (1) developing the methodology for calculating the benchmark limitations; (2) developing the methodology for calculating -the size of the price evaluation adjustments that should be employed in a given industry; and (3) determining applicable adjustments. Id. Based on its methodology, the DoC determined that a PEA of 10% should be employed in specific two-digit SIC major industry groups, including SIC 73-Busi-ness Services. Id. The DoC’s methodology is designed to ensure that the price adjustments authorized by the regulatory reforms are “narrowly tailored to remedy discrimination.” Id. at 35716. The methodology includes four steps. First, the DoC identified firms that are “ready and willing” to supply the federal government. Id. Second, the DoC calculated the federal government’s utilization of each ready and willing firm by reference to the fiscal year 1996 net contract obligations awarded by federal agencies to each firm. Id. Third, the DoC estimated the capacity of each ready and willing firm to supply the federal government. Id. Finally, DOC compared SDB shares of utilization and capacity held by ready and willing firms in each Contracting Arena and recommended that the price evaluation adjustments be implemented where SDB share of industry utilization falls short of SDB share of industry capacity. Id. The determinations were based on the DoC’s benchmark and utilization estimates derived from fiscal year 1996 data. Id. Based on the DoD’s experience with its price evaluation adjustment, the DoC determined that a price evaluation adjustment of ten percent would not raise the SDB share of utilization above the SDB share of capacity held by firms ready and willing to fulfill federal contracts in any industry (and regions, in the case of the construction sector). Id. at 35718. Accordingly, the DoC determined that there were no industries (and regions, in the case of the construction sector) where a price evaluation adjustment greater than 0 percent and less than ten percent would be appropriate. Id. On September 30, 1999, the DoC published a notice in the Federal Register stating that the PEA and the authorized SIC major groups for fiscal year 2000 would be the same as those used in 1999. 64 Fed.Reg. 52806 (Sept. 30, 1999). In order to develop new benchmarks and utilization estimates for its FY 2001 determination, the DoC planned to collect and analyze fiscal year 1999 data along the lines of the methodology outlined in the June 30, 1998 Notice. Id. Based on its assessment of the consistency in recent federal procurement patterns, the DoC proposed to develop new benchmarks and utilization estimates every three years. Id. The DoC stated that it would monitor procurement annually to see if benchmarks and utilization estimates should be updated more frequently than every three years. Id. On September 30, 1999, the DoC published a notice in the Federal Register stating that it would update its PEA determinations for fiscal year 2001 on or before November 17, 2000, and until that time, the authorized SIC major groups for fiscal year 2001 would be the same as those used in 2000. The DoC planned to begin the use of the NAICS system in its 2001 PEA update. 65 Fed.Reg. 46055 (July 26, 2000). Pursuant to the 1998 amendments to the 1207 Program, the PEA has been suspended since February 24, 1999. 64 Fed.Reg. 4847-01 (Feb. 1, 1999); 65 Fed.Reg. 4948-01 (Feb. 2, 2000); 69 Fed.Reg. 7911-02 (Feb. 20, 2004); 70 Fed.Reg. 5969-02 (Feb. 4, 2005); 71 Fed.Reg. 9320-01 (Feb. 23, 2006); 72 Fed.Reg. 7424-01 (Feb. 15.2007). Apparently, the DoC has not updated its PEA determinations since 1999 because the PEA has been serially suspended since that time. b. Economic disadvantage regulations were amended to require an individualized showing of economic disadvantage for all SDB applicants As discussed previously, the 1207 Program cross-references Section 8(d) of the Small Business Act. Prior to 1999, a presumption of economic and social disadvantage was given to members of certain racial groups under Section 8(d) without regard to the net worth of the minority business owner. Adarand VII, 228 F.3d at 1184. However, the present regulations eliminate the discrepancy between the individualized determination of economic disadvantage characterizing the old Section 8(a) program and the non-individualized presumption of economic disadvantage characterizing the old Section 8(d) program. See 13 C.F.R. § 124.1002(a) (2007) (in determining whether a firm qualifies as an SDB, the criteria of social and economic disadvantage established in Section 8(a) regulations apply); see 48 C.F.R. § 19.703 (2000) (eliminating the race-based presumption of economic disadvantage of the former Section 8(d) regulation); compare 48 C.F.R. 19.703 (1998) (“Individuals who represent that they are members of named [racial] groups... may also represent themselves as socially and economically disadvantaged”) (emphasis added). The 1998 Edition of the Code of Federal Regulations stated that the presumption of both social and economic disadvantage was effective until January 1, 1999, which was after Rothe lost its bid to ICT. 48 C.F.R. § 19.703 (1998). The present regulations require SDBs to establish that their net worth is less than $750,000, after taking into account the exclusions set forth in 13 C.F.R. § 124.104(c)(2). See 13 C.F.R. §§ 124.1002(c) & 124.1008(e)(1). These regulatory changes “were intended to conform [the regulations] to a Department of Justice (“DoJ”) proposal to reform affirmative action in Federal procurement ... and to comply with the constitutional standards established by the Supreme Court .... ” 63 Fed.Reg. 35767-01 (June 30, 1998). These new regulations also gave losing non-minority bidders the opportunity to contest a winning bidder’s SDB status. Id. at 35777. c. Social disadvantage regulations were amended to lower the burden of proof required for non-minority small businesses to qualify as SDBs. Current regulations allow non-minority small businesses to prove social disadvantage by a preponderance of the evidence. 13 C.F.R. § 124.103(d)(4) (2007). At the time that Rothe lost its bid to ICT, the standard was clear and convincing evidence. 13 C.F.R. § 124.105(c)(1) (1998). This standard was changed in 1999. See 13 C.F.R. § 124.103(c)(1) (1999). E. Procedural History On November. 5, 1998, Rothe brought suit against the DoD and the United States Department of the Air Force (collectively “DoD” or “Defendants”), challenging the constitutionality of the 1207 program both facially and as applied under the equal protection component of the due process clause of the Fifth Amendment. 1. Plaintiffs First Amended Complaint Plaintiff initiated this case by filing its Original Complaint (Docket No. 1) and its Application for Preliminary Injunction (Docket No. 2) on November 5, 1998. In “Count One” of its Original Complaint, Plaintiff sought a declaratory judgment pursuant to 28 U.S.C. § 2201, holding that “Pub.L. No. 99-661, § 1207, 10 U.S.C. § 2323, as amended” contains racial preferences that “on their face violate the Fifth Amendment to the United States Constitution.” In “Count Two,” Plaintiff sought (1) a prohibitory injunction forbidding the commencement, prosecution, or performance of any work under the contract, which was scheduled to commence on December 1, 1998; (2) a mandatory injunction requiring Defendants to award the contract to Plaintiff as the low, technically qualified bidder on the subject Solicitation without employment of the 1207 Program; and (3) a prohibitory injunction prospectively enjoining the DoD from complying with the 1207 Program. In “Count Three,” Plaintiff sought its attorney’s fees and costs pursuant to 28 U.S.C. § 2412. In its Application for Preliminary Injunction, which was filed as a separate document, Plaintiff stated that it was seeking an injunction forbidding the DoD from awarding the contract to ICT and an injunction prospectively enjoining DoD compliance with the 1207 Program because it was unconstitutional. The Court denied Plaintiffs motion for preliminary injunction on November 25, 1998, which was six days before ICT was scheduled to begin work on the contract. In its Order denying the Preliminary Injunction, the Court concluded that Rothe had standing to bring this suit based on the Supreme Court’s decision in Adarand Constructors, Inc. v. Pena. 515 U.S. 200, 212, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (“Adarand III”). Ultimately, the Court denied Rothe’s motion for preliminary injunction because Rothe did not meet its burden of showing irreparable harm. See Docket No. 12. The live pleading in this case is Plaintiffs First Amended Complaint, which was filed on February 2,1999. See Docket No. 38. Plaintiffs First Amended Complaint sought the same relief requested in the Original Complaint, but in “Count Three,” it added a Little Tucker Act Claim, which sought bid preparation costs from Defendants “in an amount not to exceed $10,-000.” Furthermore, Plaintiff clarified that it sought to enjoin the DoD “from discriminating in the future on the basis of race or national original in the administration of federal government contracting.” On February 26, 1999, the parties filed cross-motions for summary judgment. On April 27, 1999, this Court granted summary judgment in favor of the Government and entered its Judgment. 2. Rothe I, 49 F.Supp.2d 937 (W.D.Tex.1999) (Prado, J.) The Court noted in the first footnote of its Order granting Defendants’ joint motion for summary judgment and denying Plaintiffs motion for summary judgment (“April 27, 1999 Order”) that “many of the relevant regulations [pertaining to the 1207 Program] have been modified or reco-dified since that time [the contract at issue was solicited].” 49 F.Supp.2d at 942 n. 1. Although this observation was only worthy of a footnote in 1999, the intervening regulatory changes to the 1207 Program between the date the contract at issue was solicited in 1998 and the date that this Order was signed in 2007 are particularly relevant to the issue of whether the present (ie. January 6, 2006) reauthorization of the 1207 Program is narrowly tailored. As will be discussed infra, the Small Disadvantaged Business (“SDB”) certification regulations and the Price Evaluation Adjustment (“PEA”) regulations were significantly amended in 1998 in response to the Supreme Court’s holding in Adarand that federal government affirmative action programs were subject to strict scrutiny. In Rothe I, this Court recognized that “the federal government’s actions, like those of state governments, must be subjected to strict scrutiny when those actions seek to favor one race over another.” 49 F.Supp.2d at 943 (citing Adarand, 515 U.S. at 202, 115 S.Ct. 2097). Although the Supreme Court in Adarand held that strict scrutiny applies to federal affirmative action programs, this Court noted in Rothe I that the Supreme Court had failed to clearly define the parameters of Congress’ powers to enact remedial, race-based programs that survive strict scrutiny. Id. Due to this lack of guidance from the Adarand decision, this Court questioned how Congress, a national lawmaking body, may justify its remedial, race-based programs in order to maintain their legitimacy under the strictest judicial scrutiny. 49 F.Supp.2d at 943. After discussing the Supreme Court cases of Fullilove, Croson, and Adarand, this Court concluded that the Supreme Court “would favor some standard that allowed Congress a broader brush than it would allow the states with which to design remedial measures for the purpose of addressing nationwide discrimination.” Id. at 943-44. To support its “broader brush” conclusion, the Court cited to language from the Supreme Court decision in Fullilove, which stated, “It is fundamental that in no organ of government, state or federal, does there repose a more comprehensive remedial power than in Congress, expressly charged by the Constitution with competence and authority to enforce equal protection guarantees.” Id. at 943 (citing Fullilove v. Klutznick, 448 U.S. 448, 483, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980)). The Court believed that Justice O’Connor “affirmed the Court’s deference to federal programs” by stating that “Congress, unlike any State or political subdivision, has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment.” Id. at 944 (citing City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 490, 109 S.Ct. 706,102 L.Ed.2d 854 (1989)). The Court also seized upon Justice O’Con-nor’s statement that Congress, unlike the states and their political subdivisions, may identify and redress the effects of society-wide discrimination. Id. (citing Croson, 488 U.S. at 490, 109 S.Ct. 706). Justice O’Connor, writing for a plurality of the Court in Adarand, stated that no justice on the Court had repudiated his or her previously expressed views on the scope of Congressional power to enact race-based affirmative action programs under Section Five of the Fourteenth Amendment. Id. (citing Adarand, 515 U.S. at 231, 115 S.Ct. 2097). Based on this statement, the Court concluded that a “simple headcount assures this Court that a majority of the Supreme Court, including Justice O’Con-nor and the four dissenters in Adarand, would favor some standard that allowed Congress a broader brush than it would allow the states with which to design remedial measures for the purpose of addressing nationwide discrimination.” Id. Regarding the burden of proof, the Court in Rothe I held that the Government bears the burden of producing evidence that the section 1207 program is constitutional, but Rothe bears the ultimate burden of proving that the racial classification is unconstitutional. Id. at 945 (citing Walker v. City of Mesquite, 169 F.3d 973, 982 (5th Cir.1999)) (citing Wygant v. Jackson Bd. Of Educ., 476 U.S. 267, 277-78, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)). The Court noted that a burden of production is not equivalent to a burden of proof. Id. at 945 n. 6. The Court found that “there is sufficient evidence to support remedial action in the form of SBA preferences and the 1207 program and that these programs were designed to address a compelling governmental interest.” Id. at 946. To support its “compelling interest” conclusion, the Court found that the Government had produced sufficient evidence indicating that discrimination in government contracting continues to be a problem. Id. The Court also found that the Government has presented evidence supporting the enactment of the 1207 program. Id. The Court rejected Rothe’s argument that the Government must make findings of discrimination specific to the minority group in question, the industry in question, and the geographic area where the contract i