In 1990, the City of Denver established an affirmative action ordinance that outlined annual goals for the utilization of minority business enterprises (MBEs) and women business enterprises (WBEs), and that required prime contractors and subcontractors interested in bidding on City contracts to meet project participation goals or demonstrate sufficient good faith efforts to meet those goals. In 1992, Concrete Works of Colorado, Inc. (CWC), a construction firm owned and operated by a non-minority male, filed a complaint in federal court alleging that the ordinance violated the Fourteenth Amendment after losing three contracts with the City because it did not comply with the 1990 Ordinance.
While in the midst of the appeals process regarding the CWC suit, Denver retained NERA to study the availability of MBEs and WBEs and whether race and gender discrimination limited their participation in typical City construction projects. The NERA study found disparities in the utilization of M/WBEs in Colorado construction, and two NERA experts testified to these findings in court.
On appeal, the 10th Circuit Court found NERA's testimony to be compelling and stated that the NERA study used a more sophisticated method to calculate availability than earlier studies. On 17 November 2003 the U.S. Supreme Court rejected a constitutional challenge to the same Denver program, letting the 10th Circuit's ruling stand.