[Federal Register Volume 64, Number 21 (Tuesday, February 2, 1999)]
[Rules and Regulations]
[Pages 5096-5148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1083]
[[Page 5095]]
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Part II
Department of Transportation
_______________________________________________________________________
Office of the Secretary
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49 CFR Parts 23 and 26
Participation by Disadvantaged Business Enterprises in Department of
Transportation Programs; Final Rule
Federal Register / Vol. 64, No. 21 / Tuesday, February 2, 1999 /
Rules and Regulations
[[Page 5096]]
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Parts 23 and 26
[Docket OST-97-2550; Notice 97-5]
RIN 2105-AB92
Participation by Disadvantaged Business Enterprises in Department
of Transportation Programs
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
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SUMMARY: This final rule revises the Department of Transportation's
regulations for its disadvantaged business enterprise (DBE) program.
The DBE program is intended to remedy past and current discrimination
against disadvantaged business enterprises, ensure a ``level playing
field'' and foster equal opportunity in DOT-assisted contracts, improve
the flexibility and efficiency of the DBE program, and reduce burdens
on small businesses. This final rule replaces the former DBE
regulation, which now contains only the rules for the separate DBE
program for airport concessions, with a new regulation. The new
regulation reflects President Clinton's policy to mend, not end,
affirmative action programs. It modifies the Department's DBE program
in light of developments in case law requiring ``narrow tailoring'' of
such programs and last year's Congressional debate concerning the
continuation of the DBE program. It responds to comments on the
Department's December 1992 notice of proposed rulemaking (NPRM) and its
May 1997 supplemental notice of proposed rulemaking (SNPRM).
DATES: This rule is effective March 4, 1999. Comments on Paperwork
Reduction Act matters should be received by April 5, 1999; however,
late-filed comments will be considered to the extent practicable.
ADDRESSES: Persons wishing to comment on Paperwork Reduction Act
matters (see discussion at end of preamble) should send comments to
Docket Clerk, Docket No. OST-97-2550, Department of Transportation, 400
7th Street, SW., Room 4107, Washington, DC 20590. We emphasize that the
docket is open only with respect to Paperwork Reduction Act matters,
and the Department is not accepting comments on other aspects of the
regulation. We request that, in order to minimize burdens on the docket
clerk's staff, commenters send three copies of their comments to the
docket. Commenters wishing to have their submissions acknowledged
should include a stamped, self-addressed postcard with their comments.
The docket clerk will date stamp the postcard and return it to the
commenter. Comments will be available for inspection at the above
address from 10 a.m. to 5:00 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, SW., Room 10424, Washington, DC 20590,
phone numbers (202) 366-9306 (voice), (202) 366-9313 (fax), (202) 755-
7687 (TDD), bob.ashby@ost.dot.gov (email); or David J. Goldberg, Office
of Environmental, Civil Rights and General Law, Department of
Transportation, 400 7th Street, SW., Room 5432, Washington, DC 20590,
phone number (202) 366-8023 (voice), (202) 366-8536 (fax).
SUPPLEMENTARY INFORMATION:
Background
The Department has the important responsibility of ensuring that
firms competing for DOT-assisted contracts are not disadvantaged by
unlawful discrimination. For eighteen years, the Department's most
important tool for meeting this responsibility has been its
Disadvantaged Business Enterprise (DBE) program. This program began in
1980. Originally, the program was a minority/women's business
enterprise program established by regulation under the authority of
Title VI of the Civil Rights Act of 1964 and other nondiscrimination
statutes that apply to DOT financial assistance programs. See 49 CFR
part 23.
In 1983, Congress enacted, and President Reagan signed, the first
statutory DBE provision. This statute applied primarily to small firms
owned and controlled by minorities in the Department's highway and
transit programs. Firms owned and controlled by women, and the
Department's airport program, remained under the original 1980
regulatory provisions. In 1987, Congress enacted, and President Reagan
signed, statutes expanding the program to airports and to women-owned
firms. In 1991 (for highway and transit programs) and 1992 (for airport
programs), Congress enacted, and President Bush signed, statutes
reauthorizing the expanded DBE program.
After each statutory amendment, and at other times to resolve
program issues, the Department amended part 23. The result has been
that part 23 has become a patchwork quilt of a regulation. In addition,
years of interpretation by various grantees and different DOT offices
has created confusion and inconsistency in program administration.
These problems, particularly in the area of certification, were
criticized in General Accounting Office reports. The Department's
desire to improve program administration and make the rule a more
unified whole led to our publication of a December 1992 notice of
proposed rulemaking (NPRM).
The Department received about 600 comments on this NPRM. The
Department carefully reviewed these comments and, by early 1995, had
prepared a draft final rule responding to them. However, in light of
the Supreme Court's June 1995 decision in Adarand v. Pena and the
Administration's review of affirmative action programs, the Department
conducted further review of the DBE program. As a result, rather than
issuing a final rule, we issued a supplemental notice of proposed
rulemaking (SNPRM) in May 1997. This SNPRM incorporated responses to
the comments on the 1992 NPRM and proposed further changes in the
program, primarily in response to the ``narrow tailoring'' requirements
of Adarand. We received about 300 comments on the SNPRM. The Department
has carefully considered these comments, and the final rule responds to
them. The final rule also specifically complies with the requirements
that the courts have established for a narrowly tailored affirmative
action program.
At the same time that the Department was working on this final
rule, Congress once again considered reauthorization of the DBE
program. In both the House and the Senate, opponents of affirmative
action sponsored amendments that would have effectively ended the
program. In both cases, bipartisan majorities defeated the amendments.
The final highway/transit authorization legislation, known as the
Transportation Equity Act for the 21st Century (TEA-21), retains the
DBE program. In shaping this final rule, the Department has listened
carefully to what both supporters and opponents of the program have
said in Congressional debates.
Key Points of the Final Rule
This discussion reviews and responds to the SNPRM comments and the
Congressional debates on certain key issues. Congressional debate
references are to the Congressional Record for March 5 and 6, 1998, for
the Senate debate and April 1, 1998, for the House debate, unless
otherwise noted.
[[Page 5097]]
1. Quotas and Set-Asides
SNPRM Comments: Most comments on this issue came from non-DBE
contractors, who argued that the program was a de facto quota program.
Many of these contractors said that recipients insisted that they meet
numerical goals regardless of other considerations, and that the
recipients did not take showings of good faith efforts seriously. Some
non-DBE contractor organizations argued, in addition, that the program
was a quota program because it was based on a statute that had a 10
percent target for the use of businesses defined by a racial
classification.
Congressional Debate: Opponents of the DBE program generally
asserted that it created quotas or set-asides. Senator McConnell
described the entire program, particularly the provision that ``not
less than 10 percent'' of authorized funds go to DBEs, as
* * * a $17.3 billion quota. In other words, if the government
decides that you are the preferred race and gender, then you are
able to compete for $17.3 billion of taxpayer-funded highway
contracts. But, if you are the wrong race and gender, then--too
bad--you can't compete for that $17 billion pot. (S1936).
The ``not less than 10 percent'' language also led opponents, such as
Senator Ashcroft, to label the program a ``set-aside,'' (S1405), a term
also employed in testimony provided by a law professor from California
who said that the statute ``imposes a set-aside that's required
regardless of the availability of race-neutral solutions.'' (S1407).
Senator Gorton said that the DBE statute provides that ``those not
defined as disadvantaged in our society are absolutely barred and
prohibited from getting certain governmental contracts.'' (S1415).
On the other hand, supporters of the program were adamant that it
was not a quota program. Senator Baucus argued that the program, as
implemented by DOT, allows substantial flexibility to recipients and
contractors. Recipients could have an overall goal other than 10
percent under current rules, he pointed out. Senator Kerry of
Massachusetts added that what the statute does is to ``set a national
goal. And it is appropriate in this country to set national goals for
what we will do to try to break down the walls of discrimination. * *
*'' (S1408). He also alluded to the flexibility of the Secretary to
permit overall goals of less than 10 percent. Senator Robb stated:
I want to stress at the outset that this program is not a
``quota program,'' as some have suggested. There is a great
difference [between] an aspirational goal and a rigid numerical
requirement. Quotas utilize rigid numerical requirements as a means
of implementing a program. The DBE program uses aspirational goals.
(S1425).
With respect to individual contract goals, Senator Baucus said,
``once a goal is established for a contract, each contractor must make
a good-faith effort to meet the goal--not mathematically required, not
quota required, but a good faith effort to meet it.'' (S1402). Senator
Baucus pointed to provisions of the SNPRM concerning overall goals,
means of meeting them, and good-faith efforts as further narrowly
tailoring the program. The SNPRM confirms, he said, that ``contract
goals are not binding. If a contractor makes good faith efforts to find
qualified women or minority-owned subcontractors, but fails to meet the
goal, there is no penalty.'' (S1403). Senator Robb added that
``Contract goals are not operated as quotas because they require that
the prime contractor make `good faith efforts' to find DBEs. If a prime
contractor cannot find qualified and competitive DBEs, the goal can be
waived.'' (S1425).
One of the Senators who addressed the quota/set-side issue in the
most detail was Senator Domenici. He concluded that ``I do not agree
that this minority business program we have in this ISTEA bill before
us is a program that mandates quotas and mandates set-asides.''
(S1426). He made this statement, in part, on the basis of March 5,
1998, letter to him signed by Secretary of Transportation Rodney Slater
and Attorney General Janet Reno. In relevant part, this letter (which
Senator Domenici inserted into the record) read as follows:
The 10 percent figure contained in the statute is not a
mandatory set aside or rigid quota. First, the statute explicitly
provides that the Secretary of Transportation may waive the goal for
any reason * * * Second, in no way is the 10 percent figure imposed
on any state or locality * * * Moreover, state agencies are
permitted to waive goals when achievement on a particular contract
or even for a specific year is not possible. The DBE program does
not set aside a certain percentage of contracts or dollars for a
specific set of contractors. Nor does the DBE program require
recipients to use set-asides. The DBE program is a goals program
which encourages participation without imposing rigid requirements
of any type. Neither the Department's current nor proposed
regulations permit the use of quotas. The DBE program does not use
any rigid numerical requirements that would mandate a fixed number
of dollars or contracts for DBEs. (S1427).
The debate in the House proceeded in similar terms. Opponents of
the DBE program, such as Representative Roukema (H2000), Representative
Cox (H2004) and Speaker Gingrich (H2009) said the legislation
constituted a quota, while proponents, such as Representatives Tauscher
(H2001), Poshard (H2003), Bonior (H2004) and Menendez (H2004) said the
program did not involve quotas or set-asides.
DOT Response: The DOT DBE program is not a quota or set-aside
program, and it is not intended to operate as one. To make this point
unmistakably clear, the Department has added explicitly worded new or
amended provisions to the rule.
Section 26.41 makes clear that the 10 percent statutory goal
contained in ISTEA and TEA-21 is an aspirational goal at the national
level. It does not set any funds aside for any person or group. It does
not require any recipient or contractor to have 10 percent (or any
other percentage) DBE goals or participation. Unlike former part 23, it
does not require recipients to take any special administrative steps
(e.g., providing a special justification to DOT) if their annual
overall goal is less than 10 percent. Recipients must set goals
consistent with their own circumstances (see Sec. 26.45). There is no
direct link between the national 10 percent aspirational goal and the
way a recipient operates its program. The Department will use the 10
percent goal as a means of evaluating the overall performance of the
DBE program nationwide. For example, if nationwide DBE participation
were to drop precipitously, the Department would reevaluate its efforts
to ensure nondiscriminatory access to DOT-assisted contracting
opportunities.
Section 26.43 states flatly that recipients are prohibited from
using quotas under any circumstances. The section also prohibits set-
asides except in the most extreme circumstances where no other approach
could be expected to redress egregious discrimination. Section 26.45
makes clear that in setting overall goals, recipients aspire to
achieving only the amount of DBE participation that would be obtained
in a nondiscriminatory market. Recipients are not to simply pick a
number representing a policy objective or responding to any particular
constituency.
Section 26.53 also outlines what bidders must do to be responsive
and responsible on DOT-assisted contracts having contract goals. They
must make good faith efforts to meet these goals. Bidders can meet this
requirement either by having enough DBE participation to meet the goal
or by documenting good faith efforts, even if those efforts did not
actually achieve the
[[Page 5098]]
goal. These means of meeting contract goal requirements are fully
equivalent. Recipients are prohibited from denying a contract to a
bidder simply because it did not obtain enough DBE participation to
meet the goal. Recipients must seriously consider bidders'
documentation of good faith efforts. To make certain that bidders'
showings are taken seriously, the rule requires recipients to offer
administrative reconsideration to bidders whose good faith efforts
showings are initially rejected.
These provisions leave no room for doubt: there is no place for
quotas in the DOT DBE program. In the Department's oversight, we will
take care to ensure that recipients implement the program consistent
with the intent of Congress and these regulatory prohibitions.
2. Sanctions for Recipients Who Fail To Meet Overall Goals
SNPRM Comments: The issue of sanctions for recipients who fail to
meet overall goals was not a subject of comments on the SNPRM. Since
the Department has never imposed such sanctions, this absence of
comment is not surprising.
Congressional Debate: DBE program opponents asserted, in connection
with their argument that the DBE program is a quota program, that the
Department could impose sanctions for failure to meet goals. ``The
goals have requirements and the real threat of sanctions,'' Senator
McConnell said. (S1488). Citing a provision of a Federal Highway
Administration (FHWA) manual saying that if ``a state has violated or
failed to comply with Federal laws or * * * regulations,'' FHWA could
withhold Federal funding, Senator McConnell said,
In other words, there are sanctions. The same threats appear in
* * * the Federal transportation regulations * * * When the Federal
government is wielding that kind of weapon from on high, it does not
have to punish them. A 10 percent quota is still a quota, even if
the States always comply and no one is formally punished. (Id.)
Defenders of the DBE program pointed out that the Department had
never punished a recipient for failing to meet an overall goal (e.g.,
Rep. Tauscher, H2001; Senator Boxer, S1433). Senator Domenici asked
Secretary Slater and Attorney General Reno whether there are sanctions,
penalties, or fines that may be (or ever have been) imposed on a
recipient who does not meet DBE program goals. He entered the following
reply in the record:
No state has ever been sanctioned by DOT for not meeting its
goals. Nothing in the statute or regulations imposes sanctions on
any state recipient that has attempted in good faith, but failed, to
meet its self-imposed goals. (S1427).
Senator Lieberman added that if states fail to meet their own goals,
``there is no Federal sanction or enforcement mechanism.'' (S1493).
DOT Response: The Department has never sanctioned a recipient for
failing to meet an overall goal. We do not intend to do so. To
eliminate any confusion, we have added a new provision (Sec. 26.47)
that explicitly states that a recipient cannot be penalized, or treated
by the Department as being in noncompliance with the rule, simply
because its DBE participation falls short of its overall goal. For
example, if a recipient's overall goal is 12 percent, and its
participation is 8 percent, the Department cannot and will not penalize
the recipient simply because its actual DBE participation rate was less
than its goal.
Overall goals are not quotas, and the Department does not sanction
recipients because their participation levels fall short of their
overall goals. Of course, if a recipient does not have a DBE program,
does not set a DBE goal, does not implement its DBE program in good
faith, or discriminates in the way it operates its program, it can be
found in noncompliance. But its noncompliance would never be having
failed to ``make a number.''
3. Economic Disadvantage
SNPRM Comments: Some commenters favored eliminating the presumption
of economic disadvantage, saying that applicants should have to prove
their economic disadvantage. Other commenters favored obtaining
additional financial information from applicants so that, even if the
presumption remained in force, recipients would have a better idea of
whether applicants really were disadvantaged. The question of the
standard for determining disadvantage generated substantial comment,
with some commenters favoring, and others objecting to, the proposed
use of a personal net worth standard to assist recipients in
determining whether an applicant was economically disadvantaged. There
was also disagreement among commenters concerning the level at which
such a standard should be set (e.g., $750,000, or something higher or
lower). These comments, and the Department's response to them, are
further discussed in the section-by-section analysis for Sec. 26.67.
Congressional Debate: The Congress debated the topic of who is
regarded as economically disadvantaged under the statute. DBE
opponents, including Senators Ashcroft (S1405) and McConnell (S1418)
and Representative Cox (H2004), asserted that outrageously rich people
could be eligible to participate as DBEs, frequently using the Sultan
of Brunei as an example. The basic thrust of their argument was that if
the program does not exclude wealthy members of the designated groups--
meaning those who are not, in fact, disadvantaged--then it is
``overinclusive'' and therefore not narrowly tailored. Senator
McConnell added that, because the Department's SNPRM did not include a
specific dollar amount for a cap on personal net worth, it would not be
effective. (S1486). On the other hand, DBE program supporters cited the
SNPRM's proposed net worth cap as an effective device to stop wealthy
people from participating in the program. These included Minority
Leader Daschle (with a reference to a letter from the Associate
Attorney General, S1413), Senator Baucus (S1414, S1423), Senator
Lieberman (S1493), Senator Boxer (S1433), and Senator Moseley-Braun,
who responded to the Sultan of Brunei example by noting that the
program was directed primarily at U.S. citizens (S1420).
DOT Response: The final rule (Sec. 26.67) specifically imposes a
personal net worth cap of $750,000. This means that, regardless of
race, gender or the size of their business, any individual whose
personal net worth exceeds $750,000 is not considered economically
disadvantaged and is not eligible for the DBE program. The provision
also makes it much easier for recipients to determine whether an
individual's net worth exceeds the cap. Applicants will have to submit
a statement of personal net worth and supporting documentation to the
recipient with their applications. If the information shows net worth
above the cap, the recipient would rebut the presumption based on the
information in the application itself and the individual would not be
eligible for the program. In such a case, it would not be necessary for
a third party to challenge the economic disadvantage of an applicant in
order to rebut the presumption. While there have been very few
documented cases of wealthy individuals seeking to take advantage of
the Department's program, the revised provisions of part 26 virtually
eliminate even the possibility of this type of abuse.
4. Social Disadvantage
SNPRM Comments: A few commenters suggested that the
[[Page 5099]]
presumption of social disadvantage, as well as that of economic
disadvantage, be eliminated, so that applicants would have to
demonstrate both elements of disadvantage. Any presumption of
disadvantage tied to a racial classification, in the view of some of
these commenters, undermined the constitutionality of the program.
Other commenters noted that persons who are not members of the
presumptively disadvantaged groups can be eligible and, in some cases,
suggested that the criteria for evaluating such applications be
clarified.
Congressional Debate: The presumption of social disadvantage drew
fire from DBE program opponents because it was allegedly overinclusive.
For example, Senator McConnell produced a map illustrating the over 100
countries of origin leading to inclusion in one of the presumed
socially disadvantaged groups, pointing out that people from some
countries (e.g., Pakistan) are presumed to be socially disadvantaged
while those from other countries (e.g., Poland) are not. (S1418).
Senator McConnell said that there was no basis for selecting this
definition over any other. (Id.) Senator Hatch also listed the
countries from which Asian-Pacific Americans and Subcontinent Asian-
Americans can originate, suggesting that it was inappropriate to create
``all kinds of special interest groups who are vying for these
programs.'' (S1411).
DBE proponents responded that discrimination against minorities and
women in general, and against specific minorities in particular (e.g.,
African Americans) was very real and formed a basis for the presumption
of social disadvantage (see discussion below concerning the existence
of discrimination). Senator Baucus also noted that this presumption
could be overcome. (S1402).
Opponents also charged that the presumption of social disadvantage
was underinclusive; that is, ``you underinclude people who have a right
to be included in the bid process.'' (Senator McConnell, S1399). The
people who are not included who have a right to be, in the view of
opponents, are white males (e.g., Senator Sessions' reference to
testimony from Adarand Constructors' owner, S1400). Senator Kennedy
disagreed with this assertion, saying
Of course, this program doesn't just help women and minorities.
It extends a helping hand to firms owned by white males, as well.
They can be certified to [participate] if they prove that they have
been disadvantaged. Just ask Randy Pech--owner of the Adarand
Construction Firm--because he is currently seeking certification.
(S1482).
Senator Domenici was interested in the same question, and entered into
the record the following response from Secretary Slater and Attorney
General Reno:
Any individual owning a business may demonstrate that he is
socially and economically disadvantaged, even if that individual is
not a woman or a minority. Both the current and proposed regulations
provide detailed guidance to recipients to assist them in making
individual determinations of disadvantaged status. And, in fact,
businesses owned by white males have qualified for DBE status.
(S1427).
DOT Response: By having passed the DBE statutory provision, after
lengthy and specific debate, Congress has once again determined that
members of the designated groups should be presumed socially
disadvantaged. All of these groups are specifically incorporated by
reference in the legislation that Congress debated and approved. This
presumption (i.e., a determination that it is not necessary for group
members to prove individually that they have been the subject of
discrimination or disadvantage) is based on the understanding of
Members of Congress about the discrimination that members of these
groups have faced. The presumption is rebuttable in the DOT program. If
a recipient or third party determines that there is a reasonable basis
for concluding that an individual from one of the designated groups is
not socially disadvantaged, it can pursue a proceeding under Sec. 26.87
to remove the presumption. Likewise, a white male, or anyone else who
is not presumed to be disadvantaged, can make an individual showing of
social and economic disadvantage and participate in the program on the
same basis as any other disadvantaged individual (see Sec. 26.67).
5. The ``Low-Bid System''
SNPRM Comments: Non-DBE contractors expressed concern that a
variety of provisions under the program and the SNPRM adversely
affected the low-bid system, including contract goals, evaluation
credits, and good faith efforts guidance concerning prime contractors'
handling of subcontractor prices and consideration of other bidders'
success in meeting goals.
Congressional Debate: Opponents of the DBE program assert that the
program results in white male contractors not receiving contracts they
would otherwise expect to receive. Senator Sessions cited the statement
of the Adarand company to this effect. (S1400). Senator Ashcroft said
that ``if two bids come in from two subcontractors, one owned by a
white male and the other by a racial minority, and the bids are the
same, or even close, the job will go to the minority-owned company, not
the low bidder.'' (S1405). Senator Gorton inserted into the record
letters from a Spokane subcontractor asserting that, in a number of
cases, it had lost subcontracts to DBE firms despite having a lower
quote. (S1415-16). Representative Roukema also cited examples of firms
who made similar assertions. (H2000).
In contrast, DBE program proponents argued that the program was
about leveling the playing field for DBEs. Senator Moseley-Braun cited
letters from her constituents for the point that
* * * the DBE program is not about taking away contracts from
qualified male-owned businesses and handing them over to unqualified
female-owned firms. The program is not about denying contracts to
Caucasian low bidders in favor of higher bids that happen to have
been submitted by Hispanics or African Americans or Asians or women.
(S1420).
Without such a program, her constituents' letters said, they would lose
the chance to compete. (Id.). Citing testimony from a Judiciary
Committee hearing, Senator Kennedy noted that it was the experience of
some DBEs that white male prime contractors had accepted higher bids
from other firms to avoid working with DBEs. (S1430).
Why would a general contractor accept a higher bid? It doesn't
make sense unless you remember that the traditional business network
doesn't include women or minorities * * * [A woman business owner
testified] that some general contractors would rather lose money
than deal with female contractors. (Id.)
DOT Response: For the most part, statutory low-bid requirements
exist only at the prime contracting level. That is, state and local
governments, in awarding prime contracts, must select the low bidder in
many procurements (there may be exceptions in some types of purchases).
Nothing in this regulation requires, under any circumstances, a
recipient to accept a higher bid for a prime contract from a DBE when a
non-DBE has presented a lower bid. This rule does not interfere with
recipients' implementation of state and local low-bid legislation.
The selection of subcontractors by a prime contractor is typically
not subject to any low-bid requirements under state or local law. Prime
contractors have unfettered discretion to select any subcontractor they
wish. Price is clearly a key factor, but nothing legally compels a
prime contractor to hire the subcontractor who makes the lowest quote.
Other factors, such as the prime
[[Page 5100]]
contractor's familiarity and experience with a subcontractor, the
quality of a subcontractor's work, the word-of-mouth reputation of the
subcontractor in the prime contracting community, or the prime's
comfort or discomfort with dealing with a particular subcontractor can
be as or more important than price in some situations. It is in this
context that Sec. 26.53 requires that prime contractors make good faith
efforts to achieve DBE contract goals. The rule does not require that
recipients ignore price or quality, let alone obtain a certain amount
of DBE participation without regard to other considerations. The good
faith efforts requirements are intended to ensure that prime
contractors cannot simply refuse to consider qualified, competitive DBE
subcontractors. At the same time, the good faith efforts waiver of
contract goals serves as a safeguard to ensure that prime contractors
will not be forced into accepting an unreasonable or excessive quote
from a DBE subcontractor.
6. Constitutionality
SNPRM Comments: Non-DBE contractors and their groups argued that
the SNPRM proposals, particularly with respect to overall goals and the
use of race-conscious measures, failed to meet the Adarand narrow
tailoring test. Many of these commenters said that the overall goals
were suspect because they did not adequately consider the capacity of
DBEs to perform contracts and Adarand requires that race-conscious
measures may be used only after a recipient has demonstrated that race-
neutral means have failed. The use of presumptions based on racial
classifications was viewed as intrinsically unconstitutional by these
commenters, many of whom cited the language of Judge Kane's decision in
the Adarand remand to this effect. Some commenters also contended that,
absent recipient-specific findings of compelling need, the program
could not be constitutional. They said that existing information
alleging compelling interest--such as various disparity studies or
information compiled by the Department of Justice--was inadequate to
meet the compelling interest test. DBEs and recipients who commented
defended the constitutionality of the program, often citing experience
with discrimination in the marketplace and contending that the SNPRM
succeeded in narrowly tailoring the program.
Congressional Debate: Proponents and opponents of the DBE program
extensively debated the constitutionality of the DBE statutory
provision and the entire DBE program. Generally, opponents argued that
the Supreme Court and District Court decisions in Adarand rendered the
program unconstitutional, while proponents said that the decisions did
not have that effect.
Proponents and opponents of the DBE program agreed that the Supreme
Court's Adarand decision established a two-part test for the
constitutionality of a program that uses a racial classification. The
program must be based on a compelling governmental interest and be
narrowly tailored to further that interest (e.g., Senator McConnell,
S1396; Senator Baucus, S1403). Opponents relied on the finding of a
Colorado district court on remand that the program was not narrowly
tailored and was thus unconstitutional (Senator McConnell, S 1396;
Senator Ashcroft, S1405). Proponents replied that the remand decision
represented the views of only one district court (Senator Baucus,
S1403), that it failed to properly apply the reasoning of the Supreme
Court decision with respect to narrow tailoring (Senator Domenici,
S1425), and that the Department's forthcoming regulations would ensure
that the program was narrowly tailored (see discussion below).
A. Compelling Interest
(1) Existence of Discrimination. Proponents (and some opponents) of
the DBE provision said that discrimination and/or disadvantage with
respect to minorities and/or women persists. In the House, these
included Representative Roukema (H2000-01), Representative Norton
(H2003), Representative Poshard (H2003), Representative Menendez
(H2004), Representative Davis of Illinois (H2005), Representative
Boswell (H2005), Representative Lampson (H2006), Representative Kennedy
(H2006), Representative Jackson-Lee (H2006), Representative Edwards
(H2007), Representative Andrews (H2007), Representative Rodriguez
(H2008), Representative Towns (H2010), Representative Dixon (H2010),
and Representative Millender-McDonald (H2011). DBE opponents typically
remained silent on this point, neither affirming nor denying the
existence of discrimination against women and minorities.
There was a similar pattern in the Senate debates. Opponents
typically did not address the present existence of discrimination or
disadvantage with respect to minorities and women or its continuing
effects, spoke of such discrimination as something that existed in the
past (Senator Sessions, S1399; Senator Hatch, S1411), or asserted that
race-based disadvantage or discrimination no longer exists (Senator
Ashcroft, S1406).
The Senators who said that such discrimination persists included
Senator Baucus (S1403, S1413, S1496), Senator Warner (S1403), Senator
Kerry (S1408), Senator Wellstone (S1410), Senator Moseley-Braun (S1419-
20), Senator Robb (S1422); Senator Brownback (S1423-24), Senator
Domenici (S1425-26), Senator Kennedy (S1429-30, S1482), Senator Specter
(S1485), Senator McCain (S1489), Senator Lautenberg (S1490), Senator
Durbin (S1491), Senator Daschle (S1492), Senator Lieberman (S1493),
Senator Bingaman (S1494), Senator Murray (S1495), and Senator Dorgan
(S1495).
(2) Evidence of discrimination or disadvantage. In comments on the
passage of the TEA-21 conference report in the Senate, Senator Chafee
noted a Colorado Department of Transportation disparity study that
found a disproportionately small number of women- and minority-owned
contractors participating in that state's highway construction
industry. More than 99 percent of contracts went to firms owned by
white men. (Congressional Record, May 22, 1998; S5413). In the House
discussion of the conference report, Representative Norton presented an
extensive summary of relevant evidence of discrimination forming the
basis for a compelling need for the DBE program. (H3957).
Throughout the debate, the Members who affirmed the existence of
discrimination and/or disadvantage asserted a number of factual bases
for concluding that the DBE program was necessary. This information is
largely drawn from the Senate debate; the briefer House debate contains
less detail.
Senator Baucus cited disparities between the earnings of women and
men and between the percentage of small businesses women own and the
percentage of Federal procurement dollars they receive. He also noted
that minorities make up 20 percent of the population, own 9 percent of
construction businesses, and get only 4 percent of construction
receipts. (S1403). Finally, Senator Baucus, via a letter from the
Associate Attorney General, cited to numerous Congressional findings
concerning the effects of discrimination in the construction industry
and in DOT-assisted programs. (S1413).
Senator Kerry added that women own 9.2 percent of the nation's
construction firms but their companies earn only about half of what is
earned by male-owned firms. (S1409). Senator Robb
[[Page 5101]]
commented that the evidence of racially based disadvantage is
``compelling and disturbing.'' He continued, stating that, ``White-
owned construction firms receive 50 times as many loan dollars as
African-American owned firms that have identical equity.'' (S1422).
Senator Kennedy said that the playing field for women and minorities
and other victims of discrimination was still not level. Job
discrimination against minorities and the ``glass ceiling'' for women
still persisted, he said, adding that ``Nowhere is the deck stacked
more heavily against women and minorities than in the construction
industry.'' (S1429). He cited a number of instances in which minority
or female contractors encountered overt discrimination in trying to get
work. (S1429-30).
Senator Lautenberg said that, for transportation-related contracts,
minority-owned firms get only 61 cents for every dollar of work that
white male-owned businesses receive. The comparable figure for women-
owned firms was 48 cents. He also mentioned that ``women-owned
businesses have a lower rate of loan delinquency, yet still have far
greater difficulty in obtaining loans.'' (S1490). He then spoke of the
continuing effects of past discrimination:
Jim Crow laws were wiped off the books over 30 years ago.
However, their pernicious effects on the construction industry
remain. Transportation construction has historically relied on the
old boy network which, until the last decade, was almost exclusively
a white, old boy network. * * * This is an industry that relies
heavily on business friendships and relationships established
decades, sometimes generations, ago--years before minority-owned
firms were even allowed to compete. (Id.)
Senator Durbin referred to recent studies concerning job bias
against minorities and women. (S1491). Senator Lieberman referred
generally to previous Congressional committee findings and testimony
concerning still-existing barriers to full participation for minorities
and women. (S1493). He also cited the May 1996 Department of Justice
survey of discrimination and its effects in business and contracting.
He referred to a recent study in Denver showing that African Americans
were 3 times, and Hispanics 1.5 times, more likely than whites to be
rejected for business loans. Senator Daschle summed up by saying,
``[t]here is clearly a compelling interest in addressing the pervasive
discrimination that has characterized the highway construction
industry.'' (S1492).
Throughout the portion of the debate described above, many of the
Members stressed that goal-based programs like the DBE program were the
only effective way to combat the continuing effects of discrimination.
Senator Baucus cited the experience of Michigan, in which DBE
participation in the state-funded portion of the highway program fell
to zero in a nine-month period after the state terminated its DBE
program, while the Federal DBE program in Michigan was able to maintain
12.7 percent participation. (S1404). Senator Kerry also raised the
Michigan example, and went on to cite similar sharp decreases in DBE
participation when Louisiana, Hillsborough County, Florida, and San
Jose, California, eliminated affirmative action programs covering
state- and locally-funded programs. Senator Kerry asked rhetorically:
* * * is that just the economy of our country speaking, an
economy at one moment that is capable of having 12 percent and at
another moment, where they lose the incentive to do so, to drop down
to zero, to drop down by 99 percent, to drop down by 80 percent, to
have .4 at the State level while at the Federal level there are 12
percent? You could not have a more compelling interest if you tried.
* * * (S1409-10).
Senator Moseley-Braun added the examples of Arizona, Arkansas,
Rhode Island, and Delaware to the jurisdictions cited by other members
where state-funded projects without a DBE program have significantly
less DBE participation than Federally funded projects subject to the
DBE program. She added, ``Where there are no DBE programs, women- and
minority-owned small businesses are shut out of highway construction.''
(S1420-21). Senator Kennedy added Nebraska, Missouri, Tampa and
Philadelphia to the list of jurisdictions that experienced precipitous
drops in DBE participation after goals programs ended. (S1429-30;
S1482). He also cited comments from DBE companies that goal programs
were needed to surmount discrimination-related barriers. (S1482).
Senator Domenici repeated many of the same points as previous DBE
proponents concerning the basis for concluding that the program was
needed (S1426), as did Senator Kempthorne. (S1494).
Senator Robb emphasized that the DBE program was essential to
combating discrimination and ensuring economic opportunity, explicitly
linking the fall-off in DBE participation to continuing discrimination:
Where DBE programs at the State level have been eliminated,
participation by qualified women and qualified minorities in
government transportation contracts has plummeted. There is no way
to know whether this discrimination is intentional or subconscious,
but the effect is the same. This experience demonstrates the sad but
inescapable truth that, when it comes to providing economic
opportunities to women and minorities, passivity equals inequality.
(S1422).
3. Narrow tailoring.--DBE proponents cited the Department's
proposed DBE rule as the vehicle that would ensure that the DBE program
would be narrowly tailored. They cited features of the SNPRM including
a new mechanism for calculation of overall goals, giving priority to
race-neutral measures in meeting goals, a greater emphasis on good
faith efforts, DBE diversification, added flexibility for recipients,
net worth provisions, ability to challenge presumptions of social and
economic disadvantage, and flexibility in goal-setting. In comments on
the Senate consideration of the TEA-21 conference report, Senator
Baucus concluded by saying:
As I explained in my statements during the debate on the
McConnell amendment * * * the program is narrowly tailored, both
under the current and the new regulations, which emphasize flexible
goals tied to the capacity of firms in the local market, the use of
race-neutral measures, and the appropriate use of waivers for good
faith efforts. (Congressional Record, May 22, 1998; S5414).
Following Senator Baucus' remarks, Senator Chafee, Chairman of the
committee of jurisdiction, requested that he be associated with Senator
Baucus' remarks on constitutionality. (S5414).
DBE opponents denied that regulatory change could result in a
narrowly tailored program. Senator Smith said ``The administration's
attempt to comply with the Court's decision by fiddling around with the
DOT regulations does not meet the constitutional litmus test.''
(S1398). The most frequent argument against the efficacy of regulatory
change was that a racial classification is inherently unable to be
narrowly tailored. (Senator Sessions, S1399-1400; Senator Ashcroft,
S1407).
DOT Response: The 1998 debate over DBE legislation was the most
thorough in which Congress has engaged since the beginning of the
program. The record of this debate clearly supports the Department's
view that there is a compelling governmental interest in remedying
discrimination and its effects in DOT-assisted contracting. Congress
clearly determined that real, pervasive, and injurious discrimination
exists. Congress backed up that determination with reference to a wide
range of factual material, including private and public contracting,
DOT-assisted and state-and locally-funded programs and the financing of
the contracting industry. By retaining the DBE statutory provisions
[[Page 5102]]
against this factual background, Congress clearly found that there was
a compelling governmental interest in having the program.
The courts, including the court in the Adarand Constructors Inc. v.
Pena, 965 F.Supp. 1556 (D. Colo., 1997) and the court in In re:
Sherbrooke Sodding, 6-96-CV-41 (D. Minn. 1998), agree that Congress has
the power to legislate on a nationwide basis to address nationwide
problems. Congress has a unique role as the national legislature to
look at the whole of the United States for the basis to find a
compelling governmental interest supporting the use of race-based
remedies. Congress is not required to make particularized findings of
discrimination in individual localities to which a nationwide program
may apply. Nor is Congress required to find that the Federal government
itself has discriminated before applying a race-conscious remedy. (Id.
at 1573).
Having reviewed the extensive evidence of discrimination and its
relationship to DOT-assisted contracting, the District Court in Adarand
determined that current and previous DBE provisions were a ``considered
response by Congress to the effects of discrimination on the ability of
minorities to participate in the mainstream of federal contracting.''
(Id. at 1576). The court stated that ``Congress has a strong basis in
evidence for enacting the challenged statutes, which thus serve a
`compelling governmental interest.' '' (Id. at 1577). The extensive
Congressional debate and information supporting the enactment of the
1998 DBE provision significantly strengthens the existing basis for
declaring that this program serves a compelling governmental interest.
The basis for District Court's view that the program at issue in
Adarand is unconstitutional is stated most clearly in the following
passage:
Contrary to the [Supreme] Court's pronouncement that strict
scrutiny is not `fatal in fact,' I find it difficult to envisage a
race-based classification that is narrowly tailored. By its very
nature, such [a] program is both underinclusive and overinclusive.
(Id. at 1580).
By underinclusive, the court said it meant that caucasians and members
of non-designated minority groups are excluded. By overinclusive, it
said it meant that all the members of the designated groups are
presumed to be economically and/or socially disadvantaged, without
Congress having inquired whether a particular entity seeking a racial
preference has suffered from the effects of past discrimination (citing
the Supreme Court's Croson decision, which concerned the powers of
state and local governments to use race-based remedies). (Id.)
As Senator Domenici pointed out (S1425), the key words in the
District Court's opinion are ``Contrary to the [Supreme] Court's
pronouncement. * * *'' The District Court's analysis departs markedly
from the controlling decision of the Supreme Court on this issue
(Adarand v. Pena, 515 U.S. 200 (1995)). The Supreme Court's language
with which the District Court disagreed is the following:
Finally, we wish to dispel the notion that strict scrutiny is
``strict in theory, but fatal in fact.'' [citation omitted] The
unhappy persistence of both the practice and the lingering effects
of racial discrimination against minority groups in this country is
an unfortunate reality, and government is not disqualified from
acting in response to it * * * When race-based action is necessary
to further a compelling interest, such action is within
constitutional constraints if it satisfies the ``narrow tailoring''
test this Court has set out in previous cases. (515 U.S. at 237).
The Supreme Court evidently considers the ``not fatal in fact''
language to have continuing vitality, having cited it in a subsequent
case (U.S. v. Virginia, 518 U.S. 515, note 6 (1996)).
Under the District Court's analysis, Congress could never use a
race-based classification, no matter how compelling the need, because
any such classification would intrinsically fail to be narrowly
tailored. This approach effectively moots the determination of whether
there is a compelling governmental interest. The Supreme Court's
approach, by contrast, permits a racial classification to be used,
given the existence of a compelling interest, if it is narrowly
tailored.
What is the test for narrow tailoring? As set forth in United
States v. Paradise, 480 U.S. 149, 171 (1987), the test includes several
factors: ``the necessity for relief and the efficacy of alternative
remedies; the flexibility and duration of the relief, including the
availability of waiver provisions; the relationship of the goals to the
relevant labor market; and the impact of the relief on the rights of
third parties.'' In Adarand, the Supreme Court specifically invited
inquiry into whether there was any consideration of the use of race-
neutral means to increase minority business participation (related to
the efficacy of alternative remedies) and whether the program was
appropriately limited so that it will not last longer than the
discrimination it is designed to eliminate (related to the duration of
relief). (515 U.S. at 238).
This final rule successfully addresses each element of this test:
The necessity of relief. Throughout the debate on the
compelling governmental interest, the bipartisan majority of both
houses of Congress repeatedly described the necessity of the DBE
program's goal-based approach to remedying the effects of
discrimination in DOT-assisted contracting. The most significant
evidence demonstrating the necessity of a goal-oriented program is the
evidence cited of the fall-off in DBE participation in state
contracting when goal-oriented programs end, compared to participation
rates in the Federal DBE program.
Efficacy of alternative remedies. This element of the
narrow tailoring standard is related to the Supreme Court's inquiry
concerning race-neutral programs. Under Sec. 26.51 of this rule,
recipients are required to meet the maximum feasible portion of their
overall goals by using race-neutral measures. Recipients are not
required to have contract goals on each contract. Instead, they are
instructed to use contract goals only for any portion of their overall
goal they cannot meet through race-neutral measures. Contract goals are
intended as a safety net to be used when race-neutral means are not
effective to ensure that a recipient can achieve ``level playing
field.'' Moreover, the regulations provide that recipients must reduce
the use of contract goals when other means are sufficient to meet their
overall goals. This ensures that race-conscious relief is used only to
the extent necessary and is replaced by race-neutral as quickly as
possible.
Flexibility of relief. Flexibility is built into the
program in a variety of ways. Recipients set their own goals, based on
local market conditions; their goals are not imposed by the federal
government nor do recipients have to tie them to any uniform national
percentage. (Sec. 26.45). Recipients also choose their own method for
goal setting and can choose to base the goal on the evidence that they
believe best reflects their market conditions. (Sec. 26.45). Recipients
have broad discretion to choose whether or not to use a goal on any
given contract, and if they do choose to use a contract goal, they are
free to set it at any level they believe is appropriate for the type
and location of the specific work involved. (Sec. 26.51). The rule also
ensures flexibility for contractors by requiring that any contract goal
be waived entirely for a prime contractor that demonstrates that it
made good faith efforts but was still unable to meet the goal.
(Sec. 26.53). The rule also allows recipients that believe they can
achieve equal opportunity for DBEs through different approaches to get
waivers releasing
[[Page 5103]]
them from almost any of the specific requirements of the rule.
(Sec. 26.103). Recipients can also get exemptions from the rule if they
have unique circumstances that make complying with the rule
impractical. (Sec. 26.103).
Duration of relief. The TEA-21 DBE program will end in
2004 unless reauthorized by the Congress. In each successive
reauthorization bill for the surface transportation and airport
programs, Congress will have the opportunity to examine the current
state of transportation contracting and determine whether the DBE
program statutes are still necessary to remedy the continuing effects
of discrimination. In addition, the duration of relief for individuals
and firms are limited by the personal net worth threshold and business
size caps. When an individual's personal wealth grows beyond the
threshold, he or she will lose the presumption of disadvantage.
(Sec. 26.67). Similarly, when a firm's receipts grows beyond the small
business size standards, it loses its eligibility to participate in the
program. (Sec. 26.65). Finally, to ensure that race-conscious remedies
are not used any longer than absolutely necessary, Sec. 26.51 requires
recipients to reduce the use of contract goals and rely on race-neutral
measures to the extent that they are effective.
Relationship of goals to the relevant market. The overall
goal setting provisions of Sec. 26.45 require that recipient set
overall goals based on demonstrable evidence of the relative
availability of ready, willing and able DBEs in the areas from which
each recipient obtains contractors. These provisions ensure that there
is as close a fit as possible between the goals set by each recipient
and the realities of its relevant market. When a recipient sets
contract goals, Sec. 26.51 provides that these goals are to be set
realistically in relation to the availability of DBEs for the type and
location of work involved.
Impact of relief on the rights of third parties. The
legitimate interests of third parties (e.g., prime contractors, non-DBE
subcontractors) are only minimally impacted by the DBE program, since
the program is aimed at replicating a market in which there are no
effects of discrimination and the program affects only a relatively
small percentage of total federal-aid funds. The design of the overall
and contract goal provisions ensures that the use of race-conscious
remedies having the potential to affect the interests of third parties
is limited to the extent necessary to counter the effects of
discrimination. Individual prime contractors are further protected from
suffering any undue burdens by Sec. 26.51, which prevents a prime
contractor from losing a contract if it made good faith efforts but was
still unable to meet a goal. Non-DBE firms are also protected by
Sec. 26.33, which directs recipients to take appropriate steps to
address areas of overconcentration of DBE firms in certain types of
work that could unduly burden non-DBE firms seeking the same type of
work.
Inclusion of appropriate beneficiaries. The certification
provisions of Subparts D and E, and particularly the social and
economic disadvantage provisions of Sec. 26.67, ensure that only firms
owned and controlled by individuals who are in fact socially and
economically disadvantaged can participate in the program. Eligibility
provisions guard against overinclusiveness by ensuring that individuals
with too great net worth are not presumed disadvantaged and by
permitting the recipient--on its own initiative or as the result of a
complaint--to follow procedures to rebut the presumption of social and/
or economic disadvantage. They guard against underinclusiveness by
permitting any business owner, including a white male, to demonstrate
social and economic disadvantage on an individual basis.
Section-by-Section Analysis
Section 26.1 What Are the Objectives of This Part?
There were relatively few comments on this section of the SNPRM,
most of which agreed with the proposed language. We have adopted the
suggestion of some commenters that specific reference be made to the
role of the DBE program in helping DBEs overcome barriers (e.g., access
to capital and bonding) to equal participation. We have also added a
specific reference to the role of the program in creating a level
playing field on which DBEs can compete fairly for DOT-assisted
contracts. Some non-DBE contractors urged that language be added to
explicitly oppose ``reverse discrimination.'' The rule clearly states
that nondiscrimination is the program's first objective and the
Department reiterates here that it opposes unlawful discrimination of
any kind.
Section 26.3 To Whom Does This Part Apply?
This provision is unchanged from the SNPRM, except for references
to the new TEA-21 statutory provisions. A few commenters wanted this
provision to apply to Federal Railroad Administration (FRA) programs,
as did the original version of former part 23. However, FRA does not
have specific statutory authority for a DBE program parallel to the
TEA-21 language. One commenter asked if the language saying that DBE
requirements do not apply to contracts without any DOT funding is
inconsistent with Federal Transit Administration (FTA) guidance on
applicability. While the structure of the FTA program is such that FTA
funds are commingled with local funds in many transit authority
contracts (e.g., any contract involving FTA operating assistance
funds), to which DBE requirements would apply, a contract which is
funded entirely with local funds--and without any Federal funds--would
not be subject to requirements under this rule.
Section 26.5 What Do The Terms Used in This Part Mean?
There were relatively few comments on the definitions proposed in
the SNPRM. One commenter wanted to substitute the term ``historically
underutilized business'' for DBE. Given the continued use of the DBE
term in Congressional consideration of the program, the continued use
of the ``socially and economically disadvantaged individuals'' language
in the statute, and the familiarity of concerned parties with the DBE
term, we do not believe changing the term would be a good idea.
A few commenters asked for additional definitions or elaboration of
existing definitions (e.g., ``form of arrangement,'' ``financial
assistance program,'' ``commercially useful function''). These terms
are either already defined sufficiently or are best understood in
context of the operational sections in which they are embedded, and
abstract definitions in this section would not add much to anyone's
ability to make the program work well. Consequently, we are not adding
them. Otherwise the final rule adopts the SNPRM proposals for
definitions with only minor editorial changes.
The Department has added, for the sake of clarity and consistency
with other Federal programs, definitions of the terms Alaskan native,
Alaskan native corporation (ANC), Indian tribe, immediate family
member, Native Hawaiian, Native Hawaiian organization, principal place
of business, primary industry classification, and tribally-owned
concern. These definitions are taken from the SBA's new small
disadvantaged business program regulation (13 CFR Sec. 124.3). The
definitions of the designated groups included in the definition of
``socially
[[Page 5104]]
and economically disadvantaged individual'' also derive from the SBA
regulations, as the Department's DBE statutes require. We believe these
will be useful terms of art in implementing the DBE program.
A few commenters requested definitions for the terms ``race-
conscious'' and ``race-neutral,'' and we have provided definitions. A
race-conscious program is one that focuses on, and provides benefits
only for, DBEs. The use of contract goals is the primary example of a
race-conscious measure in the DBE program. A race-neutral program is
one that, while benefiting DBEs, is not solely focused on DBE firms.
For example, small business outreach programs, technical assistance
programs, and prompt payment clauses can assist a wide variety of small
businesses, not just DBEs.
Section 26.7 What Discriminatory Actions Are Forbidden?
One commenter wanted to add prohibitions of discrimination based on
age, disability and religion. The Department is not doing so, because
discrimination on these grounds is already prohibited by other statutes
(e.g., the Americans with Disabilities Act with respect to disability).
Also, statutes which form the basis for this rule focus on race, color,
national origin, and sex. Congress determined that remedial action
focused on these areas is necessary. These grounds for discrimination
are also most relevant to problems in the DBE program that have been
alleged to exist (e.g., disparate treatment of DBE certification
applicants by race or sex). Some opponents of the program said that the
DBE program discriminates against non-DBEs. However, the Department
believes that the program is constitutional and does not violate equal
protection requirements. A reference to DOT Title VI regulations has
been deleted as unnecessary; otherwise, this provision is the same as
in the SNPRM.
Section 26.9 How Does the Department Issue Guidance and
Interpretations Under This Part?
Commenters, most of whom were recipients, focused on two issues in
this section. First, a majority of the comments favored the
``coordination mechanism'' concept for ensuring consistent DOT guidance
and interpretations. The few that disagreed with this approach did so
out of a concern that the mechanism would add delays to the process.
These commenters favored additional training or an 800 number hot line
to speed up the process.
We believe that proper coordination of interpretations and guidance
is vital to the successful implementation of this rule. As the
preambles to the 1992 and 1997 proposed rules mentioned, inconsistent
implementation of part 23 has been a continuing problem, which has been
criticized by a General Accounting Office report and which has created
unnecessary difficulty for recipients, contractors, and the Department
itself. A process for ensuring that the Department speaks with one
voice on DBE implementation matters, and for letting the public know
when DOT has spoken, will greatly improve the service we give our
customers.
We do not believe this coordination process will result in
significant delays in providing guidance. Nor will it inhibit the
ability of DOT staff and customers to communicate with one another. For
example, the process does not apply to informal advice provided by
staff to recipients or contractors over the phone or in a letter or e-
mail. It does maintain, however, the important distinction between
informal staff assistance on one hand and a binding institutional
position on the other.
For clarity in the process, we have modified the language of the
rule text to make clear that interpretations and guidance are binding,
official Departmental positions if the Secretary signs them or if the
document includes a statement that they have been reviewed and approved
by the General Counsel. The General Counsel will consult fully with all
concerned offices as part of this review process.
We intend to post significant guidance documents and
interpretations on the Department's web site to make them widely and
quickly available. As some commenters suggested, we are also continuing
to consider forming an advisory committee (or working group of an
existing committee) to facilitate customer input into DBE program
matters. This is separate from the coordination mechanism, however,
which is an internal DOT process.
The rule's provisions regarding exemptions and waivers, previously
found in the SNPRM's Sec. 26.9 (c) and (d), are now included as a
separate section at Sec. 26.15.
Section 26.11 What Records do Recipients Keep and Report?
The Department asked, in the SNPRM, whether it would be advisable
to have one standard reporting form for information about the DBE
program. Currently, each operating administration (OA) has its own
reporting form and requirements. Virtually all the commenters that
addressed this issue favored a single, DOT-wide reporting form.
Commenters also had a wide variety of suggestions for what data should
be reported, formats, and retention periods.
The Department is adopting the suggestion of having a single
reporting form, which we believe will reduce administrative burdens for
recipients, particularly those who receive funds from more than one OA.
Because we do not want to delay the issuance of this rule while a form
is being developed, we are reserving the date on which this single form
requirement will go into effect. We will take comments on the specifics
of reporting into account and consult with interested parties as we
devise the form, which will be published subsequently in Appendix B to
this rule. The Appendix will also address the issues of reporting
frequency and record retention periods. Meanwhile, recipients will
continue to report as directed by the concerned OA(s), using existing
reporting forms.
The rule is also adding a requirement that recipients develop and
maintain a ``bidders'' list. The bidders list is intended to be a count
of all firms that are participating, or attempting to participate, on
DOT-assisted contracts. The list must include all firms that bid on
prime contracts or bid or quote subcontracts on DOT-assisted projects,
including both DBEs and non-DBEs. Bidders lists appear to be a
promising method for accurately determining the availability of DBE and
non-DBE firms and the Department believes that developing bidders data
will be useful for recipients. Creating and maintaining a bidders list
will give recipients another valuable way to measure the relative
availability of ready, willing and able DBEs when setting their overall
goals. (See Sec. 26.45). We realize that identifying subcontractors,
particularly non-DBEs and all subcontractors that were unsuccessful in
their attempts to obtain contracts, may well be a difficult task for
many recipients. Mindful of that potential burden, the rule will not
impose any procedural requirements for how the data is collected.
Recipients are free to choose whether or not they wish to gather this
data through their existing bidding and reporting processes. Recipients
are encouraged to make use of all of the data already available to them
and all methods of reporting and communication with their contracting
community that they already have in place. In addition, the Department
suggests that recipients consider using a widely publicized public
notice or a
[[Page 5105]]
widely disseminated survey to encourage all firms that have bid or
quoted contracts to make themselves known to recipients.
Once recipients have created the list of bidders, they will have to
supplement that information with the age of each firm (since
establishment) and the annual gross receipts of the firm (or an average
of its annual gross receipts). Recipients can gather this additional
information by sending a questionnaire to the firms on the list, or by
any other means that the recipient believes will yield reliable
information. The recipient's plan for how to create and maintain the
list and gather the required information must be included in its DBE
program.
Section 26.13 What Assurances Must Recipients and Contractors Make?
There were few comments on this section. Most of these supported
the proposal. One comment suggested specific mention of prompt payment,
but in view of the substantive requirements on this subject, we do not
believe such a mention is needed. Some commenters favored requiring
additional public participation as part of the assurance for
recipients. Again, given substantive provisions of this rule concerning
public participation, we do not believe that repetition here is needed.
One commenter said that incorporating the requirements of part 26 in
the contract was confusing, since many provisions of part 26 apply only
to recipients. We have rewritten the assurance for contractors in
response to this concern, specifying that contractors are responsible
only for carrying out the requirements of part 26 that apply to them.
Section 26.15 How Can Recipients Apply for Exemptions or Waivers?
There has been some confusion as to this rule's distinction between
exemption and waiver. Put simply, exemptions are for unique situations
that are most likely not to be either generally applicable to all
recipients or to have been contemplated in the rulemaking process. If
such a situation occurs and it makes it impractical for a particular
recipient to comply with a provision of part 26, the recipient should
apply for an exemption from that provision. The waiver provision, by
contrast, is not designed for extraordinary circumstances where a
recipient may not be able to comply with part 26. Waiver is for a
situation where a recipient believes that it can better accomplish the
objectives of the DBE program through means other than the specific
provisions of part 26.
There were a number of comments about the proposed program waiver
provision. Most commenters on this issue favored the proposal,
believing it could add flexibility to the way recipients implement the
DBE program. A few commenters were concerned that too liberal use of
the waiver provision might undermine the goals of the rule.
The Department believes that the waiver provision is an important
aspect of the DBE program. The provision ensures that the Department
and a recipient can work together to respond to any unique local
circumstances. Recipients are encouraged to carefully review the
circumstances in their own jurisdictions to determine what mechanisms
are best suited to achieving compliance with the overall objectives of
the DBE program. If a recipient believes it is appropriate to operate
its program differently from the way that a provision of Subpart B or C
provides, including, but not limited to, any provisions regarding
administrative requirements, overall or contract goals, good faith
efforts or counting provisions, it can apply for a waiver. For example,
waiver requests could pertain to such subjects as the use of a race-
conscious measure other than a contract goal, different ways of
counting DBE participation in certain industries, use of separate
overall or contract goals to address demonstrated discrimination
against specific categories of socially and economically disadvantaged
individuals, the use or wording of assurances, differences in
information collection requirements and methods, etc.
The Department will, of course, carefully review any applications
for waivers to make sure that innovative state or local programs are
able to meet the objectives of the statutes and regulation. Decisions
on waiver requests are made by the Secretary. This authority has not
been delegated to other officials. The waiver provision, which the
Department believes will help assist recipients to ``narrowly tailor''
the program to state and local circumstances and ensure
nondiscrimination, remains in the final rule.
Section 26.21 Who Must Have a DBE Program?
The only substantive comment concerning this provision asked that
Federal Railroad Administration (FRA) programs be included. The
Department is not including FRA programs under this rule because FRA
does not have a specific DBE program statute parallel to those covering
the Federal Aviation Administration (FAA), FTA, and FHWA. FRA could
consider issuing a rule similar to part 26 under its own, separate
statutory authority. The Department shortened paragraph (b)(1) to make
it easier to understand. Within 180 days of the effective date of this
rule, all recipients with existing programs must submit revised
programs to the relevant OA for approval. The only changes from
existing programs that recipients would have to make are changes needed
to accommodate differences between former part 23 and part 26. Future
new recipients would, of course, submit a DBE program as part of the
approval process for financial assistance.
Section 26.23 What is the Requirement for a Policy Statement?
Section 26.25 What is the Requirement for a Liaison Officer?
Section 26.27 What Efforts Must Recipients Make Concerning DBE
Financial Institutions?
There were no substantive comments concerning Secs. 26.23-26.27,
and the Department is adopting them as proposed.
Section 26.29 What Prompt Payment Mechanisms Must Recipients Have?
There was substantial comment on the issue of prompt payment. A
majority of commenters supported the concept of prompt payment
provisions. Some recipients pointed out that they already had prompt
payment provisions on the books. DBEs generally supported mandating
prompt payment provisions though they, as well as other commenters,
recognized that slow payment is a problem affecting many
subcontractors, not just DBEs. Some of these comments suggested making
prompt payment requirements applicable to subcontracts in general, not
just DBE subcontracts. Some recipients were concerned about getting in
the middle of disputes between prime contractors and subcontractors.
Some commenters wanted the Department to mandate prompt payment
provisions, while others preferred that their use by recipients remain
optional.
Having considered the variety of views expressed on this subject,
the Department believes that prompt payment provisions are an important
race-neutral mechanism that can benefit DBEs and all other small
businesses. Under part 26, all recipients must include a provision in
their contracts requiring prime contractors to make prompt payments to
their subcontractors, DBE and non-DBE alike. It is clear that DBE
subcontractors are significantly--and, to the extent that
[[Page 5106]]
they tend to be smaller than non-DBEs, disproportionately--affected by
late payments from prime contractors. Lack of prompt payment
constitutes a very real barrier to the ability of DBEs to compete in
the marketplace. It is appropriate for the Department to require
recipients to take reasonable steps to deal with this barrier. We
recognize that delayed payments do not affect only DBE contractors; a
prompt payment requirement applying to all subcontracts is an excellent
example of a race-neutral measure that will assist DBEs, and we are
therefore requiring that recipients' prompt payment mechanisms apply to
all subcontracts on Federally-assisted contracts.
Paragraph (a) of this section requires recipients to put into their
DBE programs a requirement for a prompt payment contract clause. This
clause would appear in every prime contract on which there are
subcontracting possibilities, and it would obligate the prime
contractor to pay subcontractors within a given number of days from the
receipt of each payment the recipient makes to the prime contractor.
Payment is required only for satisfactory completion of the
subcontractor's work. The clause would also apply to the return of
retainage from the prime to the subcontractor. Retainage would have to
be returned within a given number of days from the time the
subcontractor's work had been satisfactorily completed, even if the
prime contract had not yet been completed. A majority of commenters on
the retainage issue favored a requirement of this kind.
The number of days involved would be selected by the recipient,
subject to OA approval as part of the recipient's DBE program. In
approving these time frames, the OAs will consider whether they are
realistic and sufficiently brief to ensure genuinely prompt payment.
Recipients who already operate under prompt payment statutes may use
their existing authority in implementing this requirement. It may be
necessary to add to existing contract clauses in some cases (e.g., if
existing prompt payment requirements do not cover retainage).
Paragraph (b) lists a series of additional measures that the
regulation authorizes, but does not require, recipients to use. These
include alternative dispute resolution, holding of payments to primes
until subcontractors are paid, and other mechanisms that the recipient
may devise. All these mechanisms could be made part of the recipient's
DBE programs.
Section 26.31 What Requirements Pertain to the DBE Directory?
Recipients maintain directories listing certified DBEs. The issue
most discussed by commenters on this section was whether the directory
should include material concerning the qualifications of the firm to do
various sorts of work. For example, has the firm been pre-qualified by
the recipient? Can it do creditable work? What kinds of work does the
firm prefer to do? Some commenters also asked that the directory should
list the geographical areas in which the firm is willing to work. Other
commenters opposed the idea of including this kind of information in
the directory.
The Department believes that the directory and the certification
process are closely intertwined. The primary purpose of the directory
is to show the results of the certification process. Consequently, the
directory should list all firms that the recipient has certified, along
with basic identifying information for the firm. Since certification
under this rule pertains to the various kinds of work a firm's
disadvantaged owners can control, it is important to list those kinds
of work in the directory. For example, if a firm seeks to work in
fields A, B, and C, but the recipient has determined that its
disadvantaged owners can control its operations only with respect to A
and B, then the directory would recite that the firm is certified to
perform work as a DBE in fields A and B.
The focus of the directory is intended to be eligibility. A
directory is a list of firms that have been certified as eligible DBEs,
with sufficient identifying information to permit interested firms to
contact the DBEs. We do not intend to turn a recipient's directory into
a comprehensive business resource manual. For example, information
about firms' qualifications, geographical preferences for work,
performance track record, capitalization, etc. are not required to be
part of the directory. Some commenters favored including one or more of
these elements, but we are concerned that other business information--
however useful in its own right--could clutter up the directory and
dilute its focus on certification.
Section 26.33 What Steps Must a Recipient Take to Address
Overconcentration of DBEs in Certain Types of Work?
For some time, the Department has heard allegations that DBEs are
overconcentrated in certain fields of highway construction work (e.g.,
guardrail, fencing, landscaping, traffic control, striping). The
concern expressed is that there are so many DBEs in these areas that
non-DBEs are frozen out of the opportunity to work. In an attempt to
respond to these concerns, the SNPRM asked for comment on a series of
options for ``diversification'' mechanisms, various incentives and
disincentives designed to shift DBE participation to other types of
work.
The Department received a great deal of comment on these proposals,
almost all of it negative. There were few comments suggesting that
overconcentration was a serious problem, and many comments said that
the alleged problem was not real. Some FTA and FAA recipients said that
if there was a problem with overconcentration, it was limited to the
highway construction program. As a general matter, recipients said that
the proposed mechanisms were costly, cumbersome, and too prescriptive.
Prime contractors opposed the provisions because they would make it
more difficult for them to find DBEs with which to meet their goals,
while DBEs opposed them because they felt the provisions would penalize
success and force them out of areas of business in which they were
experienced. Many commenters suggested using outreach or business
development plans as ways of assisting DBEs to move into additional
areas of work.
The Department does not have data from commenters or other sources
to support a finding that ``overconcentration'' is a serious,
nationwide problem. However, as part of the narrow tailoring of the DBE
program, we believe it would be useful to give recipients the authority
to address overconcentration problems where they may occur. In keeping
with the increased flexibility that this rule provides recipients, we
give recipients discretion to identify situations where
overconcentration is unduly burdening non-DBE firms. If a recipient
finds an area of overconcentration, it would have to devise means of
addressing the problem that work in their local situations. Possible
means of dealing with the problem could include assisting prime
contractors to find DBEs in non-traditional fields or varying the use
of contract goals to lessen any burden on particular types of non-DBE
specialty contractors. While recipients would have to obtain DOT
approval of determinations of overconcentration and measures for
dealing with them, the Department is not prescribing any specific
mechanisms for doing so.
[[Page 5107]]
Section 26.35 What Role do Business Development and Mentor-Protege
Programs Have in the DBE Program?
In the SNPRM, both mentor-protege programs and business development
programs (BDPs) were cast as tools to use for diversification. They
still may be used for that purpose, as noted in Sec. 26.33. However,
the Department believes that they may have a broader application, and
their use in the final rule is not limited to diversification purposes.
BDPs, in particular, are good examples of race-neutral methods
recipients can use to promote the participation of DBEs and other small
businesses in their contracting programs.
There were few comments on these provisions. Recipients wanted
flexibility, and suggested that these kinds of programs should be
optional. Their comments said that such programs were resource-
intensive, and that Federal financial assistance for them would be
welcome. One contractors' organization offered its own mentor-protege
plan as a model. A few comments voiced suspicion of mentor-protege
plans, on the basis that they allowed fronts and frauds into the
program.
The final rule makes the use of BDPs and mentor-protege programs
optional for recipients. An operating administration can direct a
particular recipient to institute a BDP, but BDPs are not mandatory
across the board. The operating administration would negotiate with the
recipient before mandating a BDP.
One feature added to this provision allows recipients to establish
a kind of mini-graduation requirement for firms that voluntarily
participate in BDPs. One of the purposes of a BDP is to equip DBE firms
to compete in the market outside the DBE program. Therefore, a
recipient could ask BDP participants to agree--as a condition of
receiving BDP assistance--to agree to leave the DBE program after a
certain number of years, or after certain business development
objectives had been achieved.
Standing alone, mentor-protege programs are not an adequate
substitute for the DBE program. While they can be an important tool to
help selected firms, they cannot be counted on to level the playing
field for DBEs in general. An effective mentor-protege program requires
close monitoring to guard against abuse, which further limits the
number of DBEs they can assist. Even with these limits, a mentor-
protege program that has safeguards to prevent large non-DBE firms from
circumventing the DBE program can be a useful component of a
recipient's overall strategy to ensure equal opportunities for DBEs.
The final rule includes safeguards intended to prevent the misuse
of mentor-protege programs. Only firms that a recipient has already
certified as DBEs (necessarily including a determination that they are
independent firms) can participate as proteges. This is intended to
preclude non-DBE firms from creating captive DBE firms to serve as
proteges. A non-DBE mentor firm cannot get credit for more than half
its goal on any contract by using its own protege. Moreover, a non-DBE
mentor firm cannot get DBE credit for using its own protege on more
than every other contract performed by the protege. That is, if Mentor
Firm X uses Protege Firm Y to perform a subcontract, X cannot get DBE
credit for using Y on another subcontract until Y had first worked on
an intervening prime contract or subcontract with a different prime
contractor.
To make mentor-protege relationships feasible, the rule provides
that mentors and proteges are not treated as affiliates of one another
for size determination purposes. Mentor-protege programs and BDPs must
be approved by the concerned operating administration before they take
effect. Recipients who already have such programs in place would make
them part of their revised DBE programs sent to the concerned OA within
180 days of the effective date of part 26.
Section 26.37 What Are a Recipient's Responsibilities for Monitoring
the Performance of Other Program Participants?
The few comments on this section asked for more detail and
clarification. In the interest of flexibility, the Department is
reluctant to be prescriptive in the matter of monitoring and
enforcement mechanisms. What we are looking for is a strong and
effective set of monitoring and compliance provisions in each
recipient's DBE program. These mechanisms could be most anything
available to the recipient under Federal, state, or local law (e.g.,
liquidated damages provisions, responsibility determinations,
suspension and debarment rules, etc.)
One of the main purposes of these provisions is to make sure that
DBEs actually perform work committed to them at contract award. The
results that recipients must measure consist of payments actually made
to DBEs, not just promises at the award stage. Credit toward goals can
be awarded only when payments (including, for example, the return of
retainage payments) are actually made to DBEs. Under the final rule,
recipients would keep a running tally of the extent to which, on each
contract, performance had matched promises. Prime contractors whose
performance fell short of original commitments would be subject to the
compliance mechanisms the recipient had made applicable.
Section 26.41 What Is the Role of the Statutory 10 Percent Goal in
This Program?
This is a new section, intended to explain what role the 10 percent
statutory goal plays in the DBE program. Under former part 23, the 10
percent figure derived from the statute had a role in the setting of
overall goals by recipients. For example, if recipients had a goal of
less than 10 percent, the rule required them to make a special
justification.
This section makes clear that the 10 percent goal is an
aspirational goal that applies to the Department of Transportation on a
national level, not to individual recipients. It is a goal that the
Department can use to evaluate its overall national success in
achieving the objectives that Congress has established for this
program. However, the national 10 percent goal is not tied to
recipients' goal-setting decisions. Recipients set goals based on what
will achieve a level playing field for DBEs in their own programs,
without regard to the national goal. Recipients are not required to set
their overall or contract goals at 10 percent or any other particular
level. Recipients are no longer required to make a special
justification if their overall goals are less than 10 percent.
As discussed in connection with the Congressional debate on the
TEA-21 DBE provision, Congress viewed flexibility concerning the
statutory 10 percent goal as an important feature of narrow tailoring
and made clear that it was setting a national goal, not a goal for any
individual recipient. The Department wants to ensure that state and
local programs have sufficient flexibility to implement their programs
in a narrowly tailored way. This section is part of the Department's
effort toward that end.
Section 26.43 Can Recipients Use Quotas or Set-Asides as Part of This
Program?
The DBE program has often been labeled as a ``quota'' or ``set-
aside'' program, especially, though not exclusively, by its opponents.
This label is, and always has been, incorrect. Fifteen years ago, in
the preamble to the Department's first rule implementing a DBE statute,
the Department carefully
[[Page 5108]]
specified that neither quotas nor set-asides were required (see 48 FR
33437-38; July 21, 1983). This remains true today. However, in light of
Adarand and this year's Congressional debates on the DBE statutes, we
believe this point deserves additional emphasis. This regulation
prohibits quotas under any circumstances and makes clear that set-
asides can only be used as a means of last resort for redressing
egregious discrimination.
A number of non-DBE contractors and their organizations continued
to assert, in comments on the SNPRM, that the DBE program operates as a
quota program. This section makes clear that recipients cannot use
quotas on DOT-assisted contracts under any circumstances. A quota is a
simple numerical requirement that a recipient or contractor must meet,
without consideration of other factors. For example, if a recipient
sets a 12 percent goal on a particular contract and refuses to award
the contract to any bidder who does not have 12 percent DBE
participation, either refusing to look at showings of good faith
efforts or arbitrarily disregarding them, then the recipient has used a
quota. The Department's regulations have never endorsed this practice.
The issue of good faith efforts is discussed further below in
connection with Sec. 26.51.
A set-aside is a very specific tool. A contracting agency sets a
contract aside for DBEs if it permits no one but DBEs to compete for
the contract. Firms other than DBEs are not eligible to bid. The
Department's DBE program has never required the use of set-asides and
has allowed recipients to use set-asides only under very limited
circumstances.
Under the SNPRM, a recipient could use a set-aside on a DOT-
assisted contract only if other methods of meeting overall goals were
demonstrated to be unavailing and the recipient had legal authority
independent of part 26. Comments were divided concerning the use of
set-asides. A number of non-DBE contractors opposed the use of set-
asides, some of them saying that set-asides might be something they
could live with if their use were balanced by the elimination of DBE
contract goals on other contracts in the same field. Some recipients
and DBEs said, however, that set-asides were a useful tool to achieve
goals, particularly for start-up contractors or small contracts.
The Department has carefully reviewed these comments and continues
to believe that set-asides should not be used in the DBE program unless
they are absolutely necessary to address a specific problem when no
other means would suffice. If a recipient has been unable to remedy the
effects of egregious discrimination through other means, it may, as a
last resort, make limited use of set-asides to the extent necessary to
resolve the problem.
Section 26.45 How Do Recipients Set Overall Goals?
Since its inception, the recipient's overall goal has been the
heart of the DBE program. Responding to Adarand, DOT clarified the
theory and purpose of the overall goal in the SNPRM. In the proposed
rule, the Department made clear that the purpose of the overall goal--
and, in fact, the DBE program as a whole--is to achieve a ``level
playing field'' for DBEs seeking to participate in federal-aid
transportation contracting. To reach a level playing field, recipients
need to examine their programs and their markets and determine the
amount of participation they would expect DBEs to achieve in the
absence of discrimination and the effects of past discrimination. The
focus of the goal section of the SNPRM was to propose ways to measure
what a level playing field would look like and to seek input on the
availability of data to make such a measurement.
The Proposed Rule and Comments
The Department proposed several options that recipients might use
for setting overall goals, including three alternative formulas for
measuring the availability of ready, willing and able DBEs in local
markets. The specific formulas will be discussed below, but generally,
they each called for setting a goal that reflected the percentage of
locally available firms that were DBEs (i.e. dividing the number of
DBEs by the number of all businesses). On all of the alternatives, the
SNPRM sought comments on both the feasibility and practical value of
the options, as well as the prospects for combining any of the
approaches and the question of whether to mandate a single approach or
allow each recipient to choose amongst the options. We invited
commenters to propose changes to any of the details of the options or
to devise entirely new ones. Finally, we asked commenters for their
input on the availability of reliable data for use with each of the
options.
Hundreds of commenters of all types--including DBEs and non-DBEs,
prime and subcontractors, state and local recipients, industry and
interest groups and private individuals--responded with a wealth of
feedback, opinions and data. It is an understatement to say that there
was no consensus among commenters as to the best way to set overall
goals. Support for the proposed options was almost evenly spread over
the choices presented, with many commenters firmly against all of the
options. Still more suggested that the current, non-formulaic method
was the best way to ensure the flexibility to respond to local market
conditions. Similarly, among those who expressed an opinion, commenters
were split between the propriety of choosing a single ``best'' method
and imposing it on all recipients and allowing recipients to choose
amongst all the options. One of the few universal themes in the goal-
setting comments was the problem of the availability of reliable data
on the number of DBE and non-DBE contractors.
There were a few common threads that different groups of commenters
tended to apply to all of the formulas. Among recipients, many comments
focused on the lack of data about non-DBE contractors, especially
subcontractors. Recipients often noted that they would not have the
information needed for the denominator of any of the formulas (i.e. the
total number of available businesses). Non-DBE contractors--and
industry groups representing them--generally believed that there should
be a capacity measure built into any goal setting mechanism. Finally,
DBEs--and their industry associations--were concerned that all of the
formulas would create goals based only on the current number of DBEs,
locking in the effects of past discrimination by ignoring the fact that
the lack of opportunities in the past has suppressed the number of DBE
firms available today.
Under the proposed rule's Alternative 1, recipients would calculate
the percentage of DBE firms in their directories among all firms
available to work on their DOT-assisted contracts. Under Alternative 2,
recipients would calculate the percentage of all minority-and women-
owned firms in certain SIC codes in their areas among all firms in
these SIC codes in the same areas. Under Alternative 3, recipients
would calculate a percentage based on the average number of DBE firms
that had worked on their DOT-assisted contracts in recent years divided
by the average number of all firms that had worked on their DOT-
assisted contracts in the same period. The SNPRM also proposed that
recipients could use other means, such a disparity studies or goals
developed by other recipients serving the same area, as a basis for
their goals.
Each of the three proposed alternatives received some support,
though this was often the rather tepid endorsement of commenters who
felt that one or another alternative was the
[[Page 5109]]
best of a bad lot. Non-DBE contractors often claimed that the
alternatives would unfairly increase goals, while DBE contractors often
claimed that the same proposals would unfairly decrease goals.
Commenters said that data for determining the denominators of the
equations in Alternatives 1 and 2, as well as the numerator in
Alternative 2, did not exist and that it would be a major, time-
consuming job to begin to obtain the data. Adaptation of existing
information from other sources (e.g., Census data) was said to have
significant statistical difficulties. The difficulty of getting data on
out-of-state firms was emphasized in some comments.
Commenters looked on the alternatives as cumbersome, creating
unreasonable administrative burdens, and as producing statistical
results that were skewed in various ways. The use of DBE directories as
the source of the numerator in Alternative 1 was criticized on the
basis that directories may contain firms that never actually
participate in DOT-assisted contracts. It was suggested that the number
of firms bidding rather than the number of firms certified would be a
more reliable guide, but it was also pointed out that, because
subcontractors seldom formally bid for work, this data would be hard to
obtain. Some commenters proposed adding overall population statistics
to the mix.
A significant number of commenters--primarily non-DBE contractors,
but including some recipients and other commenters as well--emphasized
the need to take ``capacity'' into account. Most popular among these
comments was using a capacity version of Alternative 3. These comments
did not propose a method of determining the capacity of the firms
contracting with the recipient.
The Final Rule
In view of the complexity and importance of the goal setting
process and the many issues raised by commenters, the Department has
decided to adopt a two step process for goal setting. The process is
intended to provide the maximum flexibility for recipients while
ensuring that goals are based on the availability of ready, willing and
able DBEs in each recipient's relevant market. The Department believes
that this approach is critical to meeting our constitutional obligation
to ensure that the program is narrowly tailored to remedy the effects
of discrimination. The first step of the process will be to create a
baseline figure for the relative availability of ready, willing and
able DBEs in each recipient's market. The second step will be to make
adjustments from the base figure, relying on an examination of
additional evidence, past experience, local expertise and anticipated
changes in DOT-assisted contracting over the coming year.
Step 1: Determining a Base Figure for the Overall Goal
The base figure is intended to be a measurement of the current
percentage of ready, willing and able businesses that are DBEs.
Ensuring that this figure is based on demonstrable evidence of each
recipient's relevant market conditions will help to ensure that the
program remains narrowly tailored. To be explicit, recipients cannot
simply use the 10 percent national goal, their goal from the previous
year, or their DBE participation level from the previous year as their
base figure. Instead, all recipients must take an actual measurement of
their marketplace, using the best evidence they have available, and
derive a base figure that is as fair and accurate a representation as
possible of the percentage of available businesses that are DBEs.
There are many different ways to measure the contracting market and
assess the relative availability of DBEs. As discussed above, the SNPRM
proposed three alternate formulas to measure relative availability,
none of which were particularly popular with commenters. In this final
rule, the Department is placing primary emphasis on the principles
underlying the measurement, mandating only that a measurement of the
relative availability of DBEs be made on the basis of demonstrable
evidence of relevant market conditions, rather than requiring that any
particular procedure or formula be used. The final rule contains a
number of examples of how to create a base figure which recipients are
free to adopt in their entirety or to use as guidelines for how to
devise their own measurement.
There are several reasons we have taken this approach. First, the
Department is aware of the differences in available data in various
markets across the nation. The flexibility inherent in this approach
will ensure that all recipients can use the procedure to set a
reasonable goal and allow each recipient to use the best data available
to it. As discussed in another section, this rule will also provide for
the development of more standard data for future goal setting. Second,
for many recipients, setting goals in this way will be a new exercise.
By fixing only the basic principle, but allowing the methodology to
change, recipients will have the opportunity to fine tune the process
each year as their experience grows and the data available to them
improve. Finally, the rule makes sure that every recipient will have at
least one reasonable and practical goal setting method available to
them.
The first example for setting a base figure relies on data sources
that are immediately available to all recipients: their DBE
directories, and a Census Bureau database that DOT and the Census
Bureau will make available to all recipients that wish to use it. This
example has its roots in the first two goal setting formulas proposed
in the SNPRM. Recipients would first assess the number of ready,
willing and able DBEs based on their own directories. For some
recipients this will be as simple as counting the number of firms in
their directory. For others, particularly those using directories
maintained by other agencies, the directories will have to be
``filtered'' for firms involved in transportation contracting. The
resulting number of DBEs would become the numerator. The denominator
would then be derived from the Census Bureau's County Business Pattern
(CBP) database. We will provide user-friendly electronic access to the
database via the internet to allow recipients to input the geographic
area and SIC codes in which they contract and receive a number for the
availability of all businesses.
There are several issues that must be addressed when comparing
numbers derived from two different data sources, some of which were
raised in the comments on the SNPRM. Recipients will need to ensure
that the scope of businesses included in the numerator is as close as
possible to the scope included in the denominator. Using as close as
possible to the same SIC codes and geographic base is very important. A
recipient using its own DBE directory, particularly one that contains
only firms in the fields in which it contracts, will still need to
determine what fields it will use for the denominator when sorting
through the CBP database. The best way to do this would be to examine
their contracting program and determine the SIC codes in which they let
the substantial majority of their contracts and subcontracts. The
geographic area used for both the numerator and the denominator should
cover the area from which the recipient draws the substantial majority
of its contractors. While it may be sufficient for some state
recipients to use their state borders as their contracting area, local
transit and airport recipients will rarely have such an obvious choice.
Those recipients will need to more carefully examine the
[[Page 5110]]
geographic area from which they draw contractors and base their
calculation of both the numerator and denominator of the equation on
the same area.
The Department and the Census Bureau will make the CBP data
available in a format that gives recipients as much flexibility as
possible to tailor the data to their contracting programs. Recipients
will be able to extract the data in one block for all of the SIC codes
they expect to contract in, or by individual SIC codes, allowing them
to weight the relative availability of DBEs in various fields, giving
more weight to the fields in which they spend more money. For example,
let us assume a recipient estimates that it will expend 10% of its
federal aid funds within SIC code 15, 40% in SIC code 16, 25% in SIC
code 17, and the remaining 25% on contracting spread over SIC codes 07,
42 and 87. The recipient could separately determine the relative
availability of DBEs for each of the three major construction SIC codes
(i.e., 15, 16 and 17) and the relative availability of DBEs in the
other three SIC codes grouped together and weight each according to the
amount of money to be spent in each area. In this example, the
recipient could calculate its weighted base figure by first determining
the number of DBEs in its directory for each of the groups, then
extracting the availability of CBP businesses for the same groups. It
would then perform the following calculation to arrive at a base figure
for step one of the goal setting process:
[GRAPHIC] [TIFF OMITTED] TR02FE99.000
As has been stated generally, this formula is offered only as an
example of a way that a recipient could choose to use the CBP database.
Recipients using the CBP data should choose whether to weight their
calculation, and whether to do so by individual SIC codes or by groups
of SIC codes, based on their own assessment of what method will best
fit their spending pattern.\1\
---------------------------------------------------------------------------
\1\ While it is not statistically necessary to account for 100%
of program dollars when performing this type of weighting, the
greater the percentage accounted for, the more accurate the
resulting calculation will be.
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Finally, there is still the question of the propriety of comparing
data from two sources as different as DBE directories and the CBP. As
mentioned above, some commenters asserted that the directories may
contain firms that do not normally perform DOT-assisted contracts. This
problem is greatest, of course, for directories maintained by other
agencies for purposes beyond DOT-assisted contracting. We believe that
the recipient's knowledge of its contracting needs and the contents of
its DBE directory will allow it to solve this problem by sorting the
directories by SIC code to extract only the firms likely to be
interested in DOT-assisted contracting. Any remaining effect from DBEs
that are certified in the relevant SIC codes but still do not intend to
compete for DOT-assisted contracts will be more than offset by the
hurdles involved in actually becoming a DBE. It is important to note
here that the certification process itself, with its paperwork, review
and on-site inspection, create a filter on the number of existing firms
that will be counted in the numerator without there being any
equivalent filter culling firms out of the denominator. Ultimately, the
Department chose these two data sources for the example because; while
they may not be perfect, they represent the best universally available
current data on both the presence of DBEs and the presence of all
businesses in local markets. Any recipient that believes it has
available to it better sources of local data from which to make a
similar calculation for its base figure is encouraged to use them.
The second example for calculating a base figure is using a bidders
list to determine the relative availability of DBEs. The concept is
similar to the one described above. The recipient would divide the
number of available ready, willing and able DBEs by the number for all
firms. The difference is that instead of measuring availability by DBE
certifications and Census data, the recipient would measure
availability by the number of firms that have directly participated in,
or attempted to participate in, DOT-assisted contracting in the recent
past. This approach has its roots in Alternative 3 from the SNPRM. Of
fundamental importance to this approach is that the recipient would
need to include all firms that have sought DOT-assisted contracts,
regardless of whether they did so by bidding on a prime contract or
quoting a job as a subcontractor. Because most DOT recipients derive
the substantial majority of their DBE participation through
subcontracting, it is absolutely essential that all DBE and non-DBE
firms that quote subcontracts be included in the bidders list.\2\
Bidders lists are a very focussed measure of ready, willing and able
firms because they filter the pool of available firms by requiring a
demonstration of their ability to participate in the process through
tracking and identifying contracting opportunities, understanding the
requirements of a particular job and assembling a bid for it. Another
attractive feature of the bidding ``filter'' is that it applies equally
to both DBEs and non-DBEs.
---------------------------------------------------------------------------
\2\ To prevent any confusion, it is important to note that the
DBE program does not use the so-called ``benchmarking'' system
employed in direct Federal procurement. The benchmarking system
relies on a unique database created specifically for use in the
federal procurement program.
---------------------------------------------------------------------------
The third example included in the final rule for setting a base
figure is using data derived from a disparity study. As was discussed
in the SNPRM, the Department is not requiring recipients to do a
disparity study, but is only making clear that use of disparity study
data by recipients that have them or choose to conduct them is a valid
means of setting a goal. Disparity studies generally contain a wide
array of statistical data, as well as anecdotal data and analysis that
can be particularly useful in the goal setting process. We list
disparity studies here, not because they are needed to justify
operating the DBE program--Congress has already established the
compelling need for the DBE program--but because the data a good
disparity study provides can be an excellent guide for a recipient to
use to set a narrowly tailored goal.
The Department will not set out specific requirements for what data
or analysis is required before a disparity study can be used for
setting a goal, because we believe that the design and conduct of the
study is best left to the local officials and the professional
organizations with which they contract to conduct the studies. Instead,
we again offer simple general principles that should apply to all
studies used for goal setting. Any study data relied on in the goal
setting process should be as recent as possible and be focussed on the
transportation contracting industry. When setting the goal, first use
the study's statistical evidence to set a base figure for the relative
availability of DBEs. Other study information, whether it is anecdotal
data, analysis or statistical information about related
[[Page 5111]]
fields, should be included when making adjustments to the base figure
(discussed in more detail below), but not included in the base figure
for the relative availability of DBEs.
The last specific example included in the rule is using the goal of
another recipient as the base figure for goal setting. This option was
also included in the SNPRM. It is intended to avoid duplicative work
and to lighten the burden the goal setting process might put on smaller
recipients. It is important to note that a recipient could only use
another recipient's goal if it was set in accordance with this rule and
the other recipient performed similar contracting in a similar market
area. Using another recipient's approved goal would only satisfy the
first step of the goal setting process. It would serve as the base
figure, and could not be used to skip over step two of the process. The
recipient would need to examine the same additional evidence it would
otherwise use to determine whether to adjust its goal from the base
figure, as well as being required to make adjustments to account for
differences in its local market or contracting program.
The final rule also maintains the option of devising an alternative
method of calculating a base figure for the goal setting process.
Explicitly listing this option serves to emphasize the point that the
options in the rule are examples meant as guidelines intended to ensure
maximum flexibility for recipients. Recipients can use this option to
take advantage of their unique expertise or any unique source of data
that they have that may not be available to other recipients. The
concerned operating administration will review and approve the
proposals of recipients that believe they can calculate a base figure
that will better reflect their relevant market than any of the examples
provided in this rule. Approval will be contingent on the proposals
following the same principles that apply to any recipient: the
methodology must be based on demonstrable data of relevant market
conditions and be designed to reach a goal that the recipient would
expect DBEs to achieve in the absence of discrimination.
Step 2: Adjusting the Base Figure
As alluded to above, measuring the relative availability of DBEs to
derive a base figure is only the first step of the goal setting
process. To ensure that they arrive at goals that truly and accurately
reflect the participation they would expect absent the effects of
discrimination, recipients must go beyond the formulaic measurement of
current availability to account for other evidence of conditions
affecting DBEs. To accomplish this second step, recipients must first
survey their jurisdiction to determine what types of relevant evidence
is available to them. Then, relying on their own knowledge of their
contracting markets they must review the evidence to determine whether
either an up or down adjustment from the base figure is needed.
One universally available form of evidence that all recipients
should consider is the proven capacity of DBEs to perform work on DOT-
assisted contracts. All recipients have been tracking and reporting the
dollar volume of work that is contracted and subcontracted to DBEs each
year. Viewed in isolation, the past achievements of DBEs do not reflect
the availability of DBEs relative to all available businesses, but it
is an important and current measure of the ability of DBEs to perform
on DOT-assisted contracts.
Though not universally available, there are hundreds of existing
disparity studies that contain a wealth of statistical and anecdotal
evidence on the utilization of disadvantaged businesses. In addition to
being a possible source of data for Step 1 of the goal setting process,
disparity studies should be considered during Step 2 of the process.
The base figure from Step 1 is intended to determine the relative
availability of DBEs. The data and analysis in a disparity study can
help a recipient determine whether those existing businesses are under-
or over-utilized. If a recipient has a study with disparity ratios
showing that existing DBEs are receiving significantly less work than
expected, an upward adjustment from the base figure is called for.
Similarly, if the disparity ratio shows overutilization, a downward
adjustment to the base figure would be warranted. The anecdotal
evidence and analysis of contracting requirements and conditions that
may have a discriminatory impact on DBEs are also important sources
that should be examined when determining what adjustment to make to the
base figure.\3\ Finally, disparity studies that are conducted within a
recipient's jurisdiction should be examined even if they were not done
specifically for the recipient. For example, a state highway agency may
find useful data and analysis in either a statewide disparity study
covering other agencies or in a disparity study examining contracting
in a county or city within the state.
---------------------------------------------------------------------------
\3\ It is important to note that adjusting the goal is only part
of the response a recipient should make to evidence of
discriminatory barriers for DBEs. All recipients have a primary
responsibility to ensure non-discrimination in their progrms and
should act aggressively to remove any discriminatory barriers in
their programs.
---------------------------------------------------------------------------
If a recipient uses another recipient's goal as its base figure
under Step 1 of the goal setting process, it will have to make
additional adjustments to ensure that its final goal is narrowly
tailored to its market and contracting program. For example, if a local
transit or airport authority adopts a statewide goal as its base
figure, it must determine the extent that local relative availability
of DBEs differs from the relative availability of DBEs in the
contracting area relied on by the state. The local recipient would also
need to examine the differences in the type of contracting work in its
program and determine whether there are significant differences in the
relative availability of DBEs in any fields that are unique to its
program--or unique to the program of the other recipient. Similarly, if
one local recipient used the goal of another local recipient in the
same market as its base figure, it would also need to adjust for
differences in the contracting fields used by the two programs.
Finally, the rule contains a brief list of other types of data a
recipient could consider when adjusting its base figure to arrive at an
overall goal. The list is by no means intended to be exhaustive.
Instead, it is meant as a guide to the types of information a recipient
should look for in Step 2 of the goal setting process. There is a wide
array of relevant local, regional and national information about the
utilization of disadvantaged businesses. Recipients are encouraged to
cast as wide a net as they can to carefully examine their contracting
programs and the public and private markets in which they operate.
Additional Goal Setting Issues
The Department proposed, in both the 1992 NPRM and the 1997 SNPRM,
that overall goals be calculated as a percentage of DOT funds a
recipient expects to expend in DOT-assisted contracts. This is
different from the existing part 23 rule, which asked recipients to set
overall goals on the basis of all funds, including state and local
funds, to be expended in DOT-assisted contracts. This change is for
accounting and administrative convenience and is not intended to have a
substantive effect on the program. While not the subject of many
comments, those who did comment on the proposal favored the change. The
final rule adopts this approach.
A few recipients commented that public participation concerning
goal setting was bothersome. Nevertheless,
[[Page 5112]]
we view it as an essential part of the goal setting process. There are
many stakeholders involved in setting goals, and it is reasonable that
they should be involved in the process and have an opportunity for
comment. The part 23 provision requiring getting a state governor's
approval of a goal of less than 10 percent has been eliminated, both
because overall goals are no longer tied to the national 10 percent
goal and to reduce administrative burdens.
The goal setting provision of the final rule continues to direct
recipients to set one annual overall goal for DBEs, rather than group-
specific goals separating minority and women-owned businesses.
Section 26.47 Can Recipients Be Penalized for Failing To Meet Overall
Goals?
This is a new section of the regulation, the purpose of which is to
clarify the Department's views on the situations in which it is
appropriate to impose sanctions on recipients with respect to goals.
The provision states explicitly what has long been the Department's
policy: no recipient is sanctioned, or found in noncompliance, simply
because it fails to meet its overall goal. In fact, through the history
of the DBE program, the Department never has sanctioned a recipient for
failing to obtain a particular amount of DBE participation.
On the other hand, if a recipient fails to set an overall goal
which the concerned operating administration approves, or fails to
operate its program in good faith toward the objective of meeting the
goal, it is subject to a finding of noncompliance and possible
sanctions. For example, if a recipient refuses to establish a goal or,
having established one, does little or nothing to work toward attaining
it, it would be reasonable for the Department to find the recipient in
noncompliance. Like all compliance provisions of the rule, this
provision is subject to the ``court order'' exception recently created
by statute (see Sec. 26.101(b)).
Section 26.49 How Are Overall Goals Established for Transit Vehicle
Manufacturers?
This provision basically continues in effect the existing transit
vehicle manufacturer (TVM) provisions of the rule. The SNPRM proposed
to change the existing rule in two respects. FHWA or FAA recipients
could avail themselves of similar provisions, if they chose. The final
rule retains this flexibility. Also, it was proposed that FTA, rather
than manufacturers, would set TVM goals. The few comments we received
on this section objected to the latter change. Consequently, we will
not adopt the proposed change and will continue to require the TVMs
themselves to set their own goals based on the principles outlined in
Sec. 26.45 of this rule.
Section 26.51 What Means Do Recipients Use To Meet Overall Goals?
One of the key points of both the SNPRM and this final rule is
that, in meeting overall goals, recipients have to give priority to
race-neutral means. By race-neutral means (a term which, for purposes
of this rule, includes gender neutrality), we mean outreach, technical
assistance, procurement process modification, etc.--measures which can
be used to increase opportunities for all small businesses, not just
DBEs, and do not involve setting specific goals for the use of DBEs on
individual contracts. Contract goals, on the other hand, are race-
conscious measures.
In the context of these definitions, it is important to note that
awards of contracts to DBEs are not necessarily race-conscious actions.
Whenever a DBE receives a prime contract because it is the lowest
responsible bidder, the resulting DBE participation was achieved
through race-neutral means. Similarly, when a DBE receives a
subcontract on a project that does not have a contract goal, its
participation was also achieved through race-neutral means. Finally,
even on projects that do carry contract goals, when a prime awards a
particular subcontract to a DBE because it has proven in the past that
it does the best or quickest work, or because it submitted the lowest
quote, the resulting DBE participation has, in fact, been achieved
through race-neutral means. We also note that the use of race-neutral
measures (e.g., outreach, technical assistance) specifically to
increase the participation of DBEs does not convert these measures into
race-conscious measures.
A number of non-DBE contractors commented that race-neutral
measures should not only be given priority, but must be tried and fail
before any use of contract goals can occur. This, they asserted, is
essential for a program to be narrowly tailored. The law on this point
is fairly clear, and does not support the commenters' contention. The
extent to which race-neutral alternatives were considered and deemed
inadequate to remedy the problem is the relevant narrow tailoring
question. Both in past legislation and when considering TEA-21,
Congress did consider race-neutral alternatives. In fact, as described
above, throughout the debate, Member after Member gave examples of how
state and local race-neutral programs without goals fail to overcome
the discriminatory barriers that face DBEs. Congress' careful
consideration and conclusion that race-neutral means are insufficient,
buttressed by this rule's emphasis on achieving as much of the goal as
possible through race-neutral means, satisfies this part of the narrow
tailoring requirement.
No one opposed the use of race-neutral means, though a number of
DBEs and recipients stressed that these means, standing alone, were
insufficient to address discrimination and its effects. Most recipients
and non-DBE contractors supported the use of race-neutral measures,
though some recipients said that increased use of these measures would
require additional resources.
The relationship between race-conscious and race-neutral measures
in the final rule is very important. The recipient establishes an
overall goal. The recipient estimates, in advance, what part of that
goal it can meet through the use of race-neutral means. This
projection, and the basis for it, would be provided to the concerned
operating administration at the same time as the overall goal, and is
subject to OA approval.
The requirement of the rule is that the recipient get the maximum
feasible DBE participation through race-neutral means. The recipient
uses race-conscious measures (e.g., sets contract goals) to get the
remainder of the DBE participation it needs to meet the overall goal.
If the recipient expects to be able to meet its entire overall goal
through race-neutral means, it could, with OA approval, implement its
program without any use of contract goals.
For example, suppose Recipient X establishes an 11 percent overall
goal for Fiscal Year 2000. This is the amount of DBE participation that
X has determined it would have if the playing field were level.
Recipient X projects that, using a combination of race-neutral means,
it can achieve 5 percent DBE participation. Recipient X then sets
contract goals on some of its contracts throughout the year to bring in
an additional 6 percent DBE participation. Recipients would keep data
separately on the DBE participation obtained through those contracts
that either did or did not involve the use of contract goals.
Recipients would use this and other data to adjust their use of race-
neutral means and contract goals during the remainder of the year and
in future years. For example, if Recipient X projected being able to
attain 5 percent DBE participation through race-neutral measures, but
was only able to obtain 1 percent from the race-neutral measures
[[Page 5113]]
it used, Recipient X would increase its future use of contract goals.
On the other hand, if Recipient X exceeded its prediction that it would
get 5 percent DBE participation from race-neutral measures and actually
obtained 10 percent DBE participation from the contracts on which there
were no contract goals, it would reduce its future use of contract
goals. A recipient that was consistently able to meet its overall goal
using only race-neutral measures would never need to use contract
goals.
Most recipients and non-DBE contractors agreed with the SNPRM's
proposal that (contrary to the part 23 provision on this subject)
contract goals not be required on all contracts. This provision is
retained in the final rule. We believe that this provision provides
recipients the ability to achieve the objective of a narrowly tailored
program. The rule also reiterates that the contract goal need not be
set at the same level as the overall goal. To express this more
clearly, let us return to the above example of Recipient X. Just
because Recipient X has an overall goal of 11 percent, it does not have
to set a contract goal on each contract. Nor does it have to establish
an 11 percent goal on each contract on which it does set a contract
goal. Indeed, since X has projected that it can achieve almost half of
its overall goal through race-neutral means, it would most likely set
contract goals on some contracts but not on others. On contracts with a
contract goal, the goal might be 4 percent one time, 18 percent another
time, 9 percent another time, depending on the actual work involved in
each contract, the location of the work and the subcontracting
opportunities available. The idea is for X to set contract goals that,
cumulatively over the year, bring in 6 percent DBE participation,
which, added to the 5 percent participation X projects achieving from
race-neutral measures, ends up meeting the 11 percent overall goal.
The SNPRM asked for comment on evaluation credits as an additional
race-conscious measure that recipients could use to meet overall goals.
The vast majority of the many comments on this subject opposed the use
of evaluation credits, on both legal (e.g., as contrary to narrow
tailoring) and policy (e.g., as confusing and subjective) grounds. A
smaller number of commenters favored at least giving recipients
discretion to use this tool. While the Department does not agree with
the contention that evaluation credits are legally suspect, we do agree
with much of the sentiment against using them in the DBE program,
particularly the practical difficulties they might involve when applied
to subcontracting (which constitutes the main source of DBE
participation in the program). As a result, the final rule does not
contain an evaluation credits provision.
The SNPRM proposed certain mechanisms for determining when it was
appropriate to ratchet back the use of contract goals. Most commenters
said they found these particular mechanisms complicated and confusing.
The Department believes that, as a matter of narrow tailoring, it is
important to have concrete mechanisms in place to ensure that race-
conscious measures like contract goals are used only to the extent
necessary to ensure a level playing field. The final rule contains
examples of four such mechanisms.
The first mechanism applies to a situation in which a recipient
estimates that it can meet its overall goal exclusively through the use
of race-neutral goals. In this case, the recipient simply does not set
contract goals during the year. The second mechanism takes this
approach one step further. If the recipient meets its overall goal two
years in a row using only race-neutral measures, the recipient
continues to use only race-neutral measures in future years, without
having to project each year how much of its overall goal it anticipates
meeting through race-neutral and race-conscious means, respectively.
However, if in any year the recipient does not meet its overall goal,
the recipient must make the projection for the following year, using
race-conscious means as needed to meet the goal.
The third mechanism applies to recipients who exceed their overall
goals for two years in a row while using contract goals. In the third
year, when setting their overall goal and making their projection of
the amount of DBE participation they will achieve through race-neutral
means, they would determine the average percentage by which they
exceeded their overall goals in the two previous years. They would then
use that percentage to reduce their reliance on contract goals in the
coming year, as noted in the regulatory text example. The rationale for
this reduction is that the recipient's overall goal represents its best
estimation of the participation level expected for DBEs in the absence
of discrimination. By exceeding that goal consistently, the recipient
may be relying too heavily on race-conscious measures. Scaling back the
use of contract goals--while keeping careful track of DBE participation
rates on projects without contract goals--will ensure that the
recipient's DBE program remains narrowly tailored to overcoming the
continuing effects of discrimination.
The fourth mechanism operates within a given year. If a recipient
determines part way through the year that it will exceed (or fall short
of) its overall goal, and it is using contract goals during that year,
it would scale back its use of contract goals (or increase it use of
race-neutral means and/or contract goals) during the remainder of the
year to ensure that it is using an appropriate balance of means to meet
its ``level playing field'' objectives.
There were also a number of comments on how contract goals should
be expressed. Most favored continuing the existing practice of adding
together the Federal and local shares of a contract and expressing the
contract goal as a percentage of the sum because it works well and
avoids confusion. A few comments favored expressing contract goals as a
percentage of only the Federal share of a contract. Ultimately, we
believe that it is not necessary for the Department to dictate which
method to use. Recipients may continue to use whichever method they
feel works best and allows them to accurately track the participation
of DBEs in their program. Recipients need only ensure that they are
consistent and clearly express the method they are using, and report to
the Department the total federal aid dollars spent and the federal aid
dollars spent with DBEs.
As a last note on this topic, FAA recipients are reminded that
funds derived from passenger facility charges (PFCs) are not covered by
this part and should not be counted as part of the Federal share in any
goal calculation. If a recipient chooses to express its contract goals
as a percentage of the combined Federal and local share, it may include
the PFC funds as part of the local share.
Section 26.53 What Are the Good Faith Efforts Procedures Recipients
Follow in Situations Where There Are Contract Goals?
There was little disagreement about the main point of this section.
When a recipient sets a contract goal, the basic obligation of bidders
is to make good faith efforts (GFE) to meet it. They can demonstrate
these efforts in either of two ways, which are equally valid. First,
they can meet the goal, by documenting that they have obtained
commitments for enough DBE participation to meet the goal. Second, even
though they have not met the goal, they can document that they have
made good faith efforts to do so. The Department emphasizes strongly
that this requirement is an important and serious one. A refusal by a
recipient to accept valid showings of
[[Page 5114]]
good faith is not acceptable under this rule.
Appendix A discusses in greater detail the kinds of good faith
efforts bidders are expected to make. There was a good deal of comment
concerning its contents. Non-minority contractors recited that good
faith efforts standards should be ``objective, measurable,
realistically achievable, and standardized.'' Not one of these comments
provided any examples or suggestions of what ``objective, measurable,
realistically achievable, and standardized'' standards would look like,
however. Certainly a one-size-fits-all checklist is neither desirable
nor possible. What constitutes a showing of adequate good faith efforts
in a particular procurement is an intrinsically fact-specific judgment
that recipients must make. Circumstances of procurements vary widely,
and GFE determinations must fit each individual situation as closely as
possible.
The proposed good faith efforts appendix suggested that one of the
factors recipients could take into account is the behavior of bidders
other than the apparent successful bidder. For example, if the latter
failed to meet the contract goal, but other bidders did, that could
suggest that the apparent successful bidder had not exerted sufficient
efforts to get DBE participation. Recipients who commented on this
issue favored the concept; non-DBE contractors opposed it. The final
rule's Appendix A makes clear that recipients are not to use a
``conclusive presumption'' approach, in which the apparent successful
bidder is summarily found to have failed to make good faith efforts
simply because another bidder was able to meet the goal. However, the
track record of other bidders can be a relevant factor in a GFE
determination, in more than one way. If other bidders have met the
goal, and the apparent successful bidder has not, this at least raises
the question of whether the apparent successful bidder's efforts were
adequate. It does not, by itself, prove that the apparent successful
bidder did not make a good faith effort to get DBE participation,
however. On the other hand, if the apparent successful bidder--even if
it failed to meet the goal--got as much or more DBE participation than
other bidders, then this fact would support the apparent successful
bidder's showing of GFE. The revised Appendix makes these points.
The proposed good faith efforts appendix also expanded on language
in part 23 concerning price-based decisions by prime contractors. The
existing language provides that a recipient can use, as evidence of a
bidder's failure to make good faith efforts, the recipient's rejection
of a DBE subcontractor's ``reasonable price'' offer. The SNPRM added
that a recipient could set a price differential from 1-10 percent to
evaluate bidders' efforts. If a bidder did not meet the goal and
rejected a DBE offer within the range, the recipient could view the
bidder as not making good faith efforts. This was an attempt to provide
additional, quantified, guidance to recipients on this issue.
Comment was mixed on this issue. Non-DBE prime contractors
generally opposed the price differential idea, saying that it
encouraged deviations from the traditional low bid system. It should be
noted, however, that subcontracts are typically awarded outside any
formal low bid system. Some recipients thought that it was a bad idea
to designate a range, because it would limit their discretion, while
others liked the additional definiteness of the range. Most recipients
supported the ``reasonable price'' concept in general, even if they had
their doubts about the value of a range. Some DBE organizations favored
the range approach.
Taking all the comments into consideration, the Department has
decided to retain language similar to that of part 23, without
reference to any specific range. Appendix A now provides that the fact
that some additional costs may be involved in finding and using DBEs is
not in itself sufficient reason for a bidder's failure to meet a DBE
contract goal, as long as such costs are reasonable. Along with this
emphasis on the reasonableness of the cost necessarily comes the fact
that prime contractors are not expected to bear unreasonable costs. The
availability of a good faith efforts waiver of the contract goal helps
to ensure that a prime contractor will not be in a position where it
has to accept an excessive or unreasonable bid from a DBE
subcontractor. At the same time, any burden that a non-DBE
subcontractor might face is also limited by the reasonableness of
competing bids. This approach retains flexibility for recipients while
avoiding the concerns commenters expressed about a particular range.
The SNPRM proposed that recipients would have to provide for an
administrative review of decisions that a bidder's GFE showing was
inadequate. The purpose of the provision was to ensure that recipients
did not arbitrarily dismiss bidders' attempts to show that they made
good faith efforts. The provision was meant to emphasize the
seriousness with which the Department takes the GFE requirement and to
help respond to allegations that some recipients administered the
program in a quota-like fashion. The SNPRM also asked whether such a
mechanism should be operated entirely by the recipient or whether a
committee including representatives of DBE and non-DBE contractors
should be involved.
A number of recipients, and a few contractors, opposed the idea on
the basis of concern about administrative burdens on recipients and
potential delays in the procurement process. A greater number of
commenters, largely non-DBE contractors but also including recipients
and DBEs, supported the proposal as ensuring greater fairness in the
process. A significant majority of all commenters said that the
recipient should operate the system on its own, because a committee
would make the process more cumbersome and raise conflict of interest
issues.
The Department will adopt this proposal, which should add to the
fairness of the system and make allegations of de facto quota
operations less likely. The Department intends that reconsideration be
administered by recipients. The regulation does not call for a
committee involving non-recipient personnel. The Department intends
that the process be informal and timely. The recipient could ensure
that the process be completed within a brief period (e.g., 5-10 days)
to minimize any potential delay in procurements. The bidder would have
an opportunity to meet with the reconsideration official, but a formal
hearing is not required. To ensure fairness, the reconsideration
official must be someone who did not participate in the original
decision to reject the bidder's showing. The recipient would have to
provide a written decision on reconsideration, but there would be no
provision for administrative appeals to DOT.
A point raised by several non-DBE commenters was that DBEs should
have to make good faith efforts (even when they were not acting as
prime contractors). The commenters suggested things like providing
capacity statements and documenting that they have bid on contracts.
This point is unrelated to the subject of this section, which has to do
with what efforts bidders for prime contracts have to make to show that
they have made to obtain DBE subcontractors. It is difficult to see
what purpose the additional paperwork burdens these commenters'
requests would serve.
One of the most hotly debated issues among commenters was whether
DBE
[[Page 5115]]
firms bidding on prime contracts should have to meet goals and make
good faith efforts to employ DBE subcontractors. Under part 23, DBE
prime contractors did not have to meet goals or make good faith
efforts. The rationale for this position was that, as DBEs, 100 percent
of the work of these contractors counted toward recipients' contract
goals, which the firms automatically met.
A significant majority of commenters on this issue--particularly
non-DBE contractors but also including some recipients and a few DBEs--
argued that DBE primes should meet goals and make GFE the same as other
contractors. Failing to do so, they said, went beyond providing a level
playing field to the point of providing an unfair advantage for DBE
bidders for prime contracts. This change would also increase
opportunities for DBE subcontractors, they said. One comment suggested
requiring DBE prime contractors to meet goals or make GFE, but stressed
that work they performed with their own forces as well as work awarded
to DBE subcontractors should count toward goals.
Supporters of the current system said that many prime contracts
performed by DBEs are too small to permit subcontracting (of course,
goals need be set only on contracts with subcontracting possibilities).
Moreover, these commenters--mostly DBEs and recipients--said that there
was already inequity as between DBEs and non-DBEs, and requiring DBEs
to meet the same requirements simply maintained the inequity. There was
also some support for a third option the Department included in the
SNPRM, in which DBEs would have to meet goals and make GFE to the
extent that work they proposed to perform with their own forces was
insufficient to meet goals.
The Department believes that, in a rule aimed at providing a level
playing field for DBEs, it is appropriate to impose the same
requirements on all bidders for prime contracts. Consequently, part 26
will depart from the part 23 approach and require DBE prime contractors
to meet goals and make good faith efforts on the same basis as other
prime contractors. However, in recognition of the DBE bidders' status
as DBEs, we will permit them to count toward goals the work that they
commit to performing with their own forces, as well as the work that
they commit to be performed by DBE subcontractors. DBE bidders on prime
contracts will be expected to make the same outreach efforts as other
bidders and to document good faith efforts in situations where they do
not fully meet contract goals.
Under part 23 and the SNPRM, recipients have a choice between
handling bidder compliance with contract goals and good faith efforts
requirements as a matter of responsiveness or responsibility. Some
recipients and other contractors recounted successful experience with
one approach or the other, and suggested reasons why everyone should
follow each approach (e.g., responsiveness as a deterrent to bid-
shopping; responsibility as a more flexible and cost-effective
approach). Both approaches have their merits, and the Department
believes the best course is to maintain the existing recipient
discretion on this issue.
Some recipients use so-called ``design-build'' or ``turnkey''
contracts, in which the design and construction of an entire project is
contracted out to a master contractor. The master contractor then lets
subcontracts, which are often equivalent to the prime contracts that
the recipient would let if it were designing and building the project
directly. In a sense, the master contractor stands in the shoes of the
recipient.
On design-build contracts, the normal process for setting contract
goals does not fit the contract award process well. At the time of the
award of the master contract, neither the recipient nor the master
contractor knows in detail what the project will look like or exactly
what contracting opportunities there will be, let alone the identity of
DBEs who may subsequently be involved. In these situations, the
recipient may alter the normal process, setting a project goal to which
the master contractor commits. Later, when the master contractor is
letting subcontracts, it will set contract goals as appropriate,
standing in the shoes of the recipient. The recipient will exercise
oversight of this process.
The final issue in this section has to do with replacement of DBEs
that drop out of a contract. What actions, if any, should a prime
contractor have to take when a DBE is unable to complete a subcontract,
for whatever reason? Should it matter whether or not the DBE's
participation is needed to achieve the prime contractor's goal?
Comment on this issue came mostly from recipients, with some non-
DBE contractors and a few DBEs providing their views. A majority of the
commenters believed that replacement of a fallen-away DBE with another
DBE (or making a good faith effort toward that end) should be required
only when needed to ensure that the prime contractor continued to meet
its contract goal. Others said that, since using DBEs to which the
prime had committed at the time of award was a contractual requirement,
replacement or good faith efforts should be required regardless of the
prime's ability to meet the goal without the lost DBE's participation.
The Department believes that, in a narrowly tailored rule, it is
not appropriate to require DBE participation at a level exceeding that
needed to ensure a level playing field. Consequently, we will require a
prime contractor to replace a fallen-away DBE (or to demonstrate that
it has made good faith efforts toward that end) only to the extent
needed to ensure that the prime contractor is able to achieve the
contract goal established by the recipient for the procurement. The
Department will also retain the SNPRM provision--supported by most
commenters who mentioned it--that a prime contractor may not terminate
a DBE firm for convenience and then perform the work with its own
forces without the recipient's written consent. This provision is
intended to prevent abuse of the program by a prime contractor who
would commit to using a DBE and then bump the DBE off the project in
favor of doing the work itself.
Section 26.55 How Is DBE Participation Counted Toward Goals?
In a narrowly tailored program, it is important that DBE credit be
awarded only for work actually being performed by DBEs themselves. The
necessary implication of this principle is that when a DBE prime
contractor or subcontractor subcontracts work to another firm, the work
counts toward DBE goals only if the other firm is itself a DBE. This
represents a change from the existing rule and the SNPRM, which said
that all the work of a DBE's contract (implicitly including work
subcontracted to non-DBEs) counts toward goals. A few comments urged
such a change. The new language is also consistent with the way that
the final rule treats goals for DBE prime contractors.
The value of work performed by DBEs themselves is deemed to include
the cost of materials and supplies purchased, and equipment leased, by
the DBE from non-DBE sources. For example, if a DBE steel erection firm
buys steel from a non-DBE manufacturer, or leases a crane from a non-
DBE construction firm, these costs count toward DBE goals. There is one
exception: if a DBE subcontractor buys supplies or leases equipment
from the prime contractor on its contract, these costs do not count
toward DBE goals. Several comments from prime contractors suggested
these costs should
[[Page 5116]]
count, but this situation is too problematic, in our view, from an
independence and commercially useful function (CUF) point of view to
permit DBE credit.
One of the most difficult issues in this section concerns how to
count DBE credit for the services of DBE trucking firms. The SNPRM
proposed that, to be performing a CUF, a DBE trucking firm had to own
50 percent of the trucks it used in connection with a contract. A
number of comments said that this requirement was out of step with
industry practice, which commonly involves companies leasing trucks
from owner-operators and other sources for purposes of a project. In
response to these comments, the Department revisited this issue and
reviewed the trucking CUF policies of a number of states. The resulting
provision requires DBEs to have overall control of trucking operations
and own at least one truck, but permits leasing from a variety of
sources under controlled conditions, with varying consequences for DBE
credit awarded.
A DBE need not provide all the trucks on a contract to receive
credit for transportation services, but it must control the trucking
operations for which it seeks credit. It must have at least one truck
and driver of its own, but it can lease the trucks of others, both DBEs
and non-DBEs, including owner operators. For work done with its own
trucks and drivers, and for work with DBE lessees, the firm receives
credit for all transportation services provided. For work done with
non-DBE lessees, the firm gets credit only for the fees or commissions
it receives for arranging the transportation services, since the
services themselves are being performed by non-DBEs.
When we say that a DBE firm must own at least one of the trucks it
uses on a contract, we intend for recipients to have a certain amount
of discretion for handling unexpected circumstances, beyond the control
of the firm. For example, suppose firm X starts the contract with one
truck it owns. The truck is disabled by an accident or mechanical
problem part way through the contract. Recipients need not conclude
that the firm has ceased to perform a commercially useful function.
Most commenters who addressed the issue agreed with the SNPRM
proposal that a DBE does not perform a CUF unless if performs at least
30 percent of the work of a contract with its own forces (a few
commenters suggested 50 percent). This provision has been retained. A
commenter suggested that the use of two-party checks by a DBE and
another firm should not automatically preclude there being a CUF. While
we do not believe it is necessary to include rule text language on this
point, we agree with the commenter. As long as the other party acts
solely as a guarantor, and the funds do not come from the other party,
we do not object to this practice where it is a commonly-recognized way
of doing business. Recipients who accept this practice should monitor
its use closely to avoid abuse.
One commenter noted an apparent inconsistency between counting 100
percent of the value of materials and supplies used by a DBE
construction contractor (e.g., in the context of a furnish and install
contract) and counting only 60 percent of the value of goods obtained
by a non-DBE contractor from a DBE regular dealer. The two situations
are treated differently, but there is a policy reason for the
difference. There is a continuing concern in the program that, if non-
DBEs are able to meet DBE goals readily by doing nothing more than
obtaining supplies made by non-DBE manufacturers through DBE regular
dealers, the non-DBEs will be less likely to hire DBE subcontractors
for other purposes. As a policy matter, the Department does not want to
reduce incentives to use DBE subcontractors, so we have not permitted
100 percent credit for supplies in this situation. Giving 100 percent
credit for materials and supplies when a DBE contractor performs a
furnish and install contract does not create the same type of
disincentive, so the policy concern does not apply. In our experience,
the 60 percent credit has been an effective incentive for the use of
DBE regular dealers, so those firms are not unduly burdened.
Section 26.61 How Are Burdens of Proof Allocated in the Certification
Process?
This section, which states a ``preponderance of evidence'' standard
for applicants' demonstration to recipients concerning group
membership, ownership, control, and business size, received favorable
comment from all commenters who addressed it. We are retaining it with
only one change, a reference to the fact that, in the final rule,
recipients will collect information concerning the economic status of
prospective DBE owners.
Section 26.63 What Rules Govern Group Membership Determinations?
There were several comments on details of this provision. One
commenter suggested that tribal registration be used as an identifier
for Native Americans. The suggestion is consistent with long-standing
DOT guidance; however this section of the regulation is meant to set
out general rules applicable to all determinations of group membership,
not to enumerate means of making the determination for specific groups.
The same commenter suggested that if someone knowingly misrepresents
himself as a group member, he should not be given further consideration
for eligibility. Misrepresentation of any kind on an application is a
serious matter. Indeed, misrepresentation of material facts in an
application can be grounds for debarment or even criminal prosecution.
While it would certainly be appropriate for recipients to take action
against someone who so misrepresented himself, the regulatory text on
group membership is not the place to make a general point about the
consequences of misrepresentation.
Some commenters wanted further definition of what ``a long period
of time'' means. We believe it would be counterproductive to designate
a number of years that would apply in all cases, since circumstances
are likely to differ. The point is to avoid ``certification
conversions'' in which an individual suddenly discovers, not long
before the application process, ancestry or culture with which he
previously has had little involvement.
We are adopting the SNPRM provision without substantive change.
Section 26.65 What Rules Govern Business Size Determinations?
By statute, the Department is mandated to apply SBA small business
size standards to determining whether a firm is a small business. The
Department is also mandated to apply the statutory size cap ($16.6
million in the current legislation, which the Department adjusts for
inflation from time to time). Consequently, the Department cannot adopt
the variety of comments we received to adjust size standards or the
gross receipts cap to take differences among industries or regions into
account. We are adopting the proposed language, using the new statutory
gross receipts cap. As under part 23, a firm must fit under both the
relevant SBA size standard and the generally applicable DOT statutory
cap to be eligible for certification.
A few commenters asked for additional guidance for situations in
which a firm is working in more than one SIC code, and the SBA size
standards for the different SIC codes are different. First, size
determinations are made for the firm as a whole, not for one
[[Page 5117]]
division or another. Second, suppose the size of Firm X (e.g.,
determined through looking at the firm's gross receipts) is $5 million,
and X is seeking certification as a DBE in SIC code yyyy and zzzz,
whose SBA small business size standards are $3.5 and $7 million,
respectively. Firm X would be a small business that could be certified
as a DBE, and that could receive DBE credit toward goals, in SIC code
zzzz but not in SIC code yyyy. This approach to the issue of differing
standards being involved with the same firm fits in well with the
general requirement of part 26 that certification be for work in
particular SIC codes.
Section 26.67 What Rules Determine Social and Economic Disadvantage?
The statutes governing the DBE program continue to state that
members of certain designated groups are presumed to be both socially
and economically disadvantaged. Therefore, the Department is not
adopting comments suggesting that one or both of the presumptions be
eliminated from the DBE rule. While the rule does specify that
applicants who are members of the designated groups do have to submit a
signed certification that they are, in fact, socially and economically
disadvantaged, this requirement should not be read as making simple
``self-certification'' sufficient to establish disadvantage. As has
been the case since the beginning of the DBE program, the presumptions
of social and economic disadvantage are rebuttable.
The Department is making an important change in this provision in
response to comments about how to rebut the presumption of economic
disadvantage. Recipient comments unanimously said that recipients
should collect financial information, such as statements of personal
net worth (PNW) and income tax returns, in order to determine whether
the presumption of economic disadvantage really applies to individual
applicants. Particularly in the context of a narrowly tailored program,
in which it is important to ensure that the benefits are focussed on
genuinely disadvantaged people (not just anyone who is a member of a
designated group), we believe that these comments have merit. While
charges by opponents of the program that fabulously wealthy persons
could readily participate under part 23 have been exceedingly
hyperbolic and inaccurate (e.g., references to the Sultan of Brunei as
a potential DBE), it is appropriate to give recipients this tool to
make sure that non-disadvantaged persons do not participate.
For this reason, part 26 requires recipients to obtain a signed and
notarized statement of personal net worth from all persons who claim to
own and control a firm applying for DBE certification and whose
ownership and control are relied upon for DBE certification. These
statements must be accompanied by appropriate supporting documentation
(e.g., tax returns, where relevant). The rule does not prescribe the
exact supporting documentation that should be provided, and recipients
should strive for a good balance between the need for thorough
examination of applicants' PNW and the need to limit paperwork burdens
on applicants. For reasons of avoiding a retroactive paperwork burden
on firms that are now certified, the rule does not require recipients
to obtain this information from currently certified firms. These firms
would submit the information the next time they apply for renewal or
recertification. The final rule's provisions on calculating personal
net worth are derived directly from SBA regulations on this subject
(see 13 CFR Sec. 124.104(c)(2), as amended on June 30, 1998).
One of the primary concerns of DBE firms commenting about
submitting personal financial information is ensuring that the
information remains confidential. In response to this concern, the rule
explicitly requires that this material be kept confidential. It may be
provided to a third party only with the written consent of the
individual to whom the information pertains. This provision is
specifically intended to pre-empt any contrary application of state or
local law (e.g., a state freedom of information act that might be
interpreted to require a state transportation agency to provide to a
requesting party the personal income tax return of a DBE applicant who
had provided the return as supporting documentation for his PNW
statement). There is one exception to this confidentiality requirement.
If there is a certification appeal in which the economic disadvantage
of an individual is at issue (e.g., the recipient has determined that
he or she is not economically disadvantaged and the individual seeks
DOT review of the decision), the personal financial information would
have to be provided to DOT as part of the administrative record. The
Department would treat the information as confidential.
Creating a clear and definitive standard for determining when an
individual has overcome the economic disadvantage that the DBE program
is meant to remedy has long been a contentious issue. In 1992, the
Department proposed to use a personal net worth standard of $750,000 to
rebut the presumption of disadvantage for members of the designated
groups. In 1997, the Department proposed a similar idea, though rather
than use the $750,000 figure, the SNPRM asked the public for input on
what the specific amount should be. Finally, as discussed in detail
above, the issue of ensuring that wealthy individuals do not
participate in the DBE program was a central part of the 1998
Congressional debate.
Public comment on both proposals was sharply divided. Roughly equal
numbers of commenters thought $750,000 was too high as thought it was
too low. Commenters proposed figures ranging from $250,000 to $2
million. Others supported the $750,000 level, which is based on the
SBA's threshold for participation in the SDB program (it is also the
retention level for the 8(a) program). One theme running through a
number of comments was that recipients should have discretion to vary
the threshold depending on such factors as the local economy or the
type of firms involved. Some comments opposed the idea of a PNW
threshold altogether or suggested an alternative approach (e.g., based
on Census data about the distribution of wealth).
Others commented that rebutting the presumption did not go far
enough, pointing out that the only way to ensure that wealthy people
did not participate in the program was for the threshold to act as a
complete bar on the eligibility of an individual to participate in the
program. Congress appears to share this concern. While they differed on
the effectiveness of past DOT efforts, both proponents and opponents of
the program agreed that preventing the participation of wealthy
individuals was central to ensuring the constitutionality of the DBE
program.
The Department agrees and, in light of the comments and the
intervening TEA-21 debate, is adopting the clearest and most effective
standard available: when an individual's personal net worth exceeds the
$750,000 threshold, the presumption of economic disadvantage is
conclusively rebutted and the individual is no longer eligible to
participate in the DBE program. The Department is using the $750,000
figure because it is a well established and effective part of the SBA
programs and is a reasonable middle ground in view of the wide range of
comments calling for higher or lower thresholds. Using a figure any
lower, as some commenters noted, could penalize success and make growth
for DBEs difficult (since, for example, banks and insurers frequently
[[Page 5118]]
look to the personal assets of small business owners in making lending
and bonding decisions). Operating the threshold as a cap on eligibility
for all applicants also serves to treat men and women, minorities and
non-minorities equally.
When a recipient determines, from the PNW statement and supporting
information, that an individual's personal net worth exceeds $750,000,
the recipient must deem the individual's presumption of economic
disadvantage to have been conclusively rebutted. No hearing or other
proceeding is called for in this case. When this happens in the course
of an application for DBE eligibility, the certification process for
the applicant firm stops, unless other socially and economically
disadvantaged owners can account for the required 51 percent ownership
and control. A recipient cannot count the participation of the owner
whose presumption of economic disadvantage has been conclusively
rebutted toward the ownership and control requirements for DBE
eligibility.
There may be other situations in which a recipient has a reasonable
basis (e.g., from information in its own files, as the result of a
complaint from a third party) for believing that an individual who
benefits from the statutory presumptions is not really socially and/or
economically disadvantaged. In these cases, the recipient may begin a
proceeding to rebut the presumptions. For example, if a recipient had
reason to believe that the owner of a currently-certified firm had
accumulated personal assets well in excess of $750,000, it might begin
such a proceeding. The recipient has the burden of proving, by a
preponderance of evidence, that the individual is not disadvantaged.
However, the recipient may require the individual to produce relevant
information.
It is possible that, at some time in the future, SBA may consider
changing the $750,000 cap amount. The Department anticipates working
closely with SBA on any such matter and seeking comment on any
potential changes to this rule that would be coordinated with changes
SBA proposes for Federal procurement programs in this area.
Under part 23, recipients had to accept 8(a)-certified firms
(except for those who exceeded the statutory gross receipts cap). The
SNPRM proposed some modifications of this requirement. Recipients were
concerned that in some situations information used for 8(a)
certification could be inaccurate or out of date. They noted
differences between 8(a) and DBE certification standards and
procedures. They asked for the ability to look behind 8(a)
certifications and make their own certification decisions.
In response to these comments, the Department is providing greater
discretion to recipients. Under part 26, recipients can treat 8(a)
certifications as they do certifications made by other DOT recipients.
A recipient can accept such a certification in lieu of conducting its
own certification process or it can require the firm to go through part
or all of its own application process. Because SBA is beginning a
certification process for firms participating in the small and
disadvantaged business (SDB) program, we will treat certified SDB firms
in the same way. If an SDB firm is certified by SBA or an organization
recognized by SBA as a certifying authority, a recipient may accept
this certification instead of doing its own certification. (This does
not apply to firms whose participation in the SDB program is based on a
self-certification.) We note that this way of handling SBA program
certifications is in the context of the development by DOT recipients
of uniform certification programs. If a unified certification program
(UCP) accepts a firm's 8(a) or 8(d) certification, then the firm will
be certified for all DOT recipients in the state.
People who are not presumed socially and economically disadvantaged
can still apply for DBE certification. To do so, they must demonstrate
to the recipient that they are disadvantaged as individuals. Using the
guidance provided in Appendix E, recipients must make case-by-case
decisions concerning such applications. It should be emphasized that
the DBE program is a disadvantage-based program, not one limited to
members of certain designated groups. For this reason, recipients must
take these applications seriously and consider them fairly. The
applicant has the burden of proof concerning disadvantage, however.
Section 26.69 What Rules Govern Determinations of Ownership?
Commenters on the ownership provisions of the SNPRM addressed a
variety of points. Most commenters agreed that the general burden of
proof on applicants should be the preponderance of the evidence. A few
commenters thought that this burden should also apply in situations
where a firm was formerly owned by a non-disadvantaged individual. For
some of these situations, the SNPRM proposed the higher ``clear and
convincing evidence'' standard, because of the heightened opportunities
for abuse involved. The Department believes this safeguard is
necessary, and we will retain the higher standard in these situations.
Commenters asked for more guidance in evaluating claims that a
contribution of expertise from disadvantaged owners should count toward
the required 51 percent ownership. They cited the potential for abuse.
The Department believes that there may be circumstances in which
expertise can be legitimately counted toward the ownership requirement.
For example, suppose someone with a great deal of expertise in a
computer-related field, without whom the success of his or her high-
tech start-up business would not be feasible, receives substantial
capital from a non-disadvantaged source.
We have modified the final rule provision to reflect a number of
considerations. Situations in which expertise must be recognized for
this purpose are limited. The expertise must be outstanding and in a
specialized field: everyday experience in administration, construction,
or a professional field is unlikely to meet this test. (This is not a
``sweat equity'' provision.) We believe that it is fair that the
critical expertise of this individual be recognized in terms of the
ownership determination. At the same time, the individual must have a
significant financial stake in the company. This program focuses on
entrepreneurial activity, not simply expertise. While we will not
designate a specific percentage of ownership that such an individual
must have, entrepreneurship without a reasonable degree of financial
risk is inconceivable.
The SNPRM's proposals on how to treat assets obtained through
inheritance, divorce, and gifts were somewhat controversial. Most
comments agreed with the proposal that assets acquired through death or
divorce be counted. One commenter objected to the provision that such
assets always be counted, saying that the owner should have to make an
additional demonstration that it truly owned the assets before the
recipient counted them. We do not see the point of such an additional
showing. If a white male business owner dies, and his widow inherits
the business, the assets are clearly hers, and the deceased husband
will play no further role in operating the firm. Likewise, assets a
woman obtains through a divorce settlement are unquestionably hers.
Absent a term of a divorce settlement or decree that limits the
customary incidents of ownership of the assets or business (a
contingency for which the proposed provision provided), there is no
problem for which an additional showing of some
[[Page 5119]]
sort by the owner would be a useful remedy.
A majority of comments on the issue of gifts opposed the SNPRM
proposal, saying that gifts should not be counted toward ownership at
all. The main reason was that allowing gifts would make it easier for
fronts to infiltrate the program. Some comments also had a flavor of
opposition to counting what commenters saw as unearned assets. The
Department understands these concerns. If a non-disadvantaged
individual who provides a gift is no longer connected with the
business, or a disadvantaged individual makes the gift, the issue of
the firm being a potential front is much reduced. Where a non-
disadvantaged individual makes a gift and remains involved with the
business, the concern about potential fronts is greater.
For this reason, the SNPRM erected a presumption that assets
acquired by gift in this situation would not count. The applicant could
overcome this presumption only by showing, through clear and convincing
evidence--a high standard of proof--that the transfer was not for the
purpose of gaining DBE certification and that the disadvantaged owner
really controls the company. This provides effective safeguards against
fraud, without going to the unfair extreme of creating a conclusive
presumption that all gifts are illegitimate. Also, for purposes of
ownership, all assets are created equal. If the money that one invests
in a company is really one's own, it does not matter whether it comes
from the sweat of one's brow, a bank loan, a gift or inheritance, or
hitting the lottery. As long as there are sufficient safeguards in
place to protect against fronts--and we believe the rule provides
them--the origin of the assets is unimportant. We are adopting the
proposed provisions without change.
Commenters were divided about how to handle marital property,
especially in community property states. Some commenters believed that
such assets should not be counted at all. This was based, in part, on
the concern that allowing such assets to be counted could make it
difficult to screen out interspousal gifts designed to set up fronts,
even if irrevocable transfers of assets were made. Other commenters
said they thought the proposal was appropriate, and some of these
thought the requirement for irrevocable transfers was unfair.
The Department is adopting the proposed language. In a community
property state, or elsewhere where property is jointly held between
spouses, the wife has a legal interest in a portion of the property. It
is really hers. It would be inappropriate to treat this genuine
property interest as if it did not exist for purposes of DBE ownership.
To ensure the integrity of the program, it is necessary to put
safeguards in place. The regulation does so. First, recipients would
not count more assets toward DBE ownership than state law treats as
belonging to the wife (the final rule provision adds language to this
effect). Second, the irrevocable transfer requirement prevents the
husband from being in a position to continue to claim any ownership
rights in the assets. If an irrevocable transfer of assets constitutes
a gift from a non-disadvantaged spouse who remains involved in the
business, then the presumption/clear and convincing evidence mechanism
discussed above for gifts would apply to the transaction. If recipients
in community property states wanted to establish a mechanism for
allocating assets between spouses that was consistent with state law,
but did not require court involvement or other more formal procedures,
they could propose doing so as part of their DBE programs, subject to
operating administration approval.
Most commenters supported the SNPRM's proposal concerning trusts,
particularly the distinction drawn between revocable living and
irrevocable trusts. One commenter favored counting revocable living
trusts when the same disadvantaged individual is both the grantor and
beneficiary. The Department believes there is merit in making this
exception. If the same disadvantaged individual is grantor,
beneficiary, and trustee (i.e., an individual puts his own money in a
revocable living trust for tax planning or other legitimate purposes
and he alone plays the roles of grantor, beneficiary, and trustee), the
situation seems indistinguishable for DBE program purposes from the
situation of the same individual controlling his assets without the
trust. In all other situations, revocable living trusts would not
count.
Some comments asked for clarification of the 51 percent ownership
requirement, a subject on which the Department has received a number of
questions over the years. The Department has clarified this
requirement, with respect to corporations, by stating that socially and
economically disadvantaged individuals must own 51 percent of each
class of voting stock of a corporation, as well as 51 percent of the
aggregate stock. A similar point applies to partnerships and limited
liability companies. This latter type of company was not mentioned in
the SNPRM, but a commenter specifically requested clarification
concerning it. (We have also noted, in Sec. 26.83, that limited
liability companies must report changes in management responsibility to
recipients. This is intended to include situations where management
responsibility is rotated among members.) These clarifications are
consistent with SBA regulations.
There are some ownership issues (e.g., concerning stock options and
distribution of dividends) that SBA addresses in some detail in its
regulations (see 13 CFR Sec. 124.105 (c), (e), (f)) that were not the
subject of comments to the DOT SNPRM. These issues have not been
prominent in DOT certification practice, to the best of our knowledge,
so we are not adding them to the rule. However, we would use the SBA
provisions as guidance in the event such issues arise.
Section 26.71 What Rules Govern Determinations Concerning Control?
Commenters generally agreed with the proposed provisions concerning
expertise and delegation of responsibilities, 51 percent control of
voting stock, and differences in remuneration. A few commenters
expressed concern about having to make judgments concerning expertise.
However, this expertise standard, as a matter of interpretation, has
been part of the DBE program since the mid-1980s. We do not believe
that articulating it in the regulatory text should cause problems, and
we believe it is a very reasonable and understandable approach to
expertise issues. The provision concerning 51 percent ownership of
voting stock, as discussed above, has been relocated in the ownership
section of the rule. The Department has added three useful
clarifications of the general requirement that disadvantaged owners
must control the firm (e.g., by serving as president or CEO,
controlling a corporate board). These clarifications are based on SBA's
regulations (see 13 CFR Sec. 124.106(a)(2), (b), (d)(1)). The
Department intends to use other material in 13 CFR Sec. 124.106 as
guidance on control matters, when applicable. Otherwise, the Department
is adopting these provisions as proposed.
There was some concern about the proposal concerning licensing.
Some recipients thought that it would be better to require a license as
proof of control in the case of all licensed occupations. We do not
think it is justifiable for the DBE program to require more than state
law does. If state law allows someone to run a certain
[[Page 5120]]
type of business (e.g., electrical contractors, engineers) without
personally having a license in that occupation, then we do not think it
is appropriate for the recipient to refuse to consider that someone
without a license may be able to control the business. The rule is very
explicit in saying that the recipient can consider the presence or
absence of a license in determining whether someone really has
sufficient ability to control a firm.
Family-owned firms have long been a concern in the program. The
SNPRM provided explicitly that if the threads of control in a family-
run business cannot be disentangled, such that the recipient can
specifically find that a woman or other disadvantaged individual
independently controls the business, the recipient may not certify the
firm. A business that is controlled by the family as a group, as
distinct from controlled individually by disadvantaged individuals, is
not eligible. Notwithstanding this provision, a few recipients
commented that certifying any businesses in which non-disadvantaged
family members participate would open the program to fronts. We do not
agree. Non-disadvantaged individuals can participate in any DBE firm,
as long as disadvantaged individuals control the firm. It is not fair
and does not achieve any reasonable program objective to say that an
unrelated white male may perform functions in a DBE while the owner's
brother may never do so.
Commenters generally supported the provision calling for recipients
to certify firms only for types of work in which disadvantaged owners
had the ability to control the firm's operations. One commenter
suggested that recipients, while not requiring recertification of firms
seeking to perform additional types of work as DBEs (e.g., work in
other than their primary industrial classification), should have to
approve a written request from firms in this position. We do believe it
is necessary for recipients to verify that disadvantaged owners can
control work in an additional area, and we have added language to this
effect. Recipients will have discretion about how to administer this
verification process.
Commenters asked for additional clarification about the eligibility
of people who work only part-time in a firm. We have done so by adding
examples of situations that do not lead to eligibility (part-time
involvement in a full-time firm and absentee ownership) and a situation
that may, depending on circumstances, be compatible with eligibility
(running a part-time firm all the time it is operating). It should be
noted that this provision does not preclude someone running a full-time
firm from having outside employment. Outside employment is incompatible
with eligibility only when it interferes with the individual's ability
to control the DBE firm on a full-time basis.
One commenter brought to the Department's attention the situation
of DBEs who use ``employee leasing companies.'' According to the
commenter, employee leasing companies fill a number of administrative
functions for employers, such as payroll, personnel, forwarding of
taxes to governmental entities, and drug testing. Typically, the
employees of the underlying firm are transferred to the payroll of the
employee leasing firm, which in turn leases them back to the underlying
employer. The underlying employer continues to hire, fire, train,
assign, direct, control etc. the employees with respect to their on-
the-job duties. While the employee leasing firm sends payments to the
IRS, Social Security, and state tax authorities on behalf of the
underlying employer, it is the latter who is remains responsible for
paying the taxes.
For practical and legal purposes, the underlying employer retains
an employer-employee relationship with the leased employees. The
employee leasing company does not get involved in the operations of the
underlying employer. In this situation, the use of an employee leasing
company by a DBE does not preclude the DBE from meeting the control
requirements of this rule. Nor does the employee leasing company become
an affiliate of the DBE for business size purposes. Case-by-case
judgement, of course, remains necessary. Should an employee leasing
company in fact exercise control over the on-the-job activities of
employees of the DBE, then the ability of the DBE to meet control
requirements would be compromised.
One commenter said, as a general matter, that independence and
control should be considered separately. We view independence as an
aspect of control: If a firm is not independent of some other business,
then the other firm, not the disadvantaged owners, exercise control.
While independence is an aspect of control that recipients must review,
we do not see any benefit in separating consideration of the two
concepts.
A recent court decision (Jack Wood Construction Co., Inc. v. U.S.
Department of Transportation, 12 F. Supp. 2d 25 (D.D.C., 1998))
overturned a DOT Office of Civil Rights certification appeal decision
that upheld a denial of certification based on lack of control. The
court, reading existing part 23 closely, said that a non-disadvantaged
individual who was an employee, but not an owner, of a firm could
disproportionately control the affairs of a firm without making it
ineligible. The court also said that the existing rule language did not
make it necessary for a disadvantaged owner to have both technical and
managerial competence to control a firm. Part 26 solves both problems
that the court found to exist in part 23's control provisions (see
Sec. 26.71(e)-(g)).
Section 26.73 What Are Other Rules Affecting Certification?
There were relatively few comments on this section. One commenter
disagreed with the proposal to continue the provision that a firm owned
by a DBE firm, rather than by socially and economically disadvantaged
individuals, was not eligible. The argument against this provision, as
we understand it, is that precluding a DBE firm from being owned by,
for example, a holding company that is in turn owned by disadvantaged
individuals would deny those individuals a financing and tax planning
tool available to other businesses.
This argument has merit in some circumstances. The purpose of the
DBE program is to help create a level playing field for DBEs. It would
be inconsistent with the program's intent to deny DBEs a financial tool
that is generally available to other businesses. The Department will
allow this exception. Recipients must be careful, however, to ensure
that certifying a firm under this exception does not have the effect of
allowing the firm, or its parent company, to evade any of the
requirements or restrictions of the certification process. The
arrangement must be consistent with local business practices and must
not have the effect of diluting actual ownership by disadvantaged
individuals below the 51 percent requirement. All other certification
requirements, including control by disadvantaged individuals and size
limits, would continue to apply.
Another commenter suggested a firm should not be certified as a DBE
if its owners have interests in non-DBE businesses. We believe that a
per se rule to this effect would be too draconian. If owners of a DBE--
whether disadvantaged individuals or not--also have interests in other
businesses, the recipient can look at the relationships among the
businesses to determine if the DBE is really independent.
One commenter opposed basing certification on the present status of
[[Page 5121]]
firms, seeking discretion to deny certification based on the history of
the firm. We believe there is no rational or legal basis for denying
certification to a firm on the basis of what it was in the past. Is it
a small business presently owned and controlled by socially and
economically disadvantaged individuals? If so, it would be contrary to
the statute, and to the intent of the program, to deny certification
because at some time--perhaps years--in the past, it was not owned and
controlled by such individuals. The rule specifies that recipients may
consider whether a firm has engaged in a pattern of conduct evincing an
intent to evade or subvert the program.
The final provision of this section concerns firms owned by Alaska
Native Corporations (ANCs), Indian tribes, and Native Hawaiian
Organizations. Like the NPRM, it provides that firms owned by these
entities can be eligible DBEs, even though their ownership does not
reside, as such, in disadvantaged individuals. These firms must meet
the size standards applicable to other firms, including affiliation
(lest large combinations of tribal or ANC-owned corporations put other
DBEs at a strong competitive disadvantage). Also, they must be
controlled by socially and economically disadvantaged individuals. For
example, if a tribe or ANC owns a company, but its daily business
operations are controlled by a non-disadvantaged white male, the firm
would not be eligible.
Commenters pointed us to the following provision of the Alaska
Native Claims Settlement Act (ANCSA):
(e) Minority and economically disadvantaged status--
(1) For all purposes of Federal law, a Native Corporation shall
be considered to be a corporation owned and controlled by Natives
and a minority and economically disadvantaged business enterprise if
the Settlement Common Stock of the corporation and other stock of
the corporation held by holders of Settlement Common Stock and by
Natives and descendants of Natives, represents a majority of both
the total equity of the corporation and the total voting power of
the corporation for the purposes of electing directors.
(2) For all purposes of Federal law, direct and indirect
subsidiary corporations, joint ventures, and partnerships of a
Native Corporation qualifying pursuant to paragraph (1) shall be
considered to be entities owned and controlled by Natives and a
minority and economically disadvantaged business enterprise if the
shares of stock or other units of ownership interest in any such
entity held by such Native Corporation and by the holders of its
Settlement Common Stock represent a majority of both--
(A) The total equity of the subsidiary corporation, joint
venture, or partnership; and
(B) The total voting power of the subsidiary corporation, joint
venture, or partnership for the purpose of electing directors, the
general partner, or principal officers. (43 U.S.C. 1626(e)).
The question for the Department is whether, reading this language
together with the language of the Department's DBE statutes, DOT must
alter these provisions.
The DOT DBE statute (TEA-21 version) provides as follows:
(b) Disadvantaged Business Enterprises.--
(1) General rule.--Except to the extent that the Secretary
determines otherwise, not less than 10 percent of the amounts made
available for any program under titles I, III, and V of this Act
shall be expended with small business concerns owned and controlled
by socially and economically disadvantaged individuals.
(2) Definitions.--In this subsection, the following definitions
apply:
(A) Small business concern.--The term ``small business concern''
has the meaning such term has under section 3 of the Small Business
Act (15 U.S.C. 632); except that such term shall not include any
concern or group of concerns controlled by the same socially and
economically disadvantaged individual or individuals which has
average annual gross receipts over the preceding 3 fiscal years in
excess of $16,600,000, as adjusted by the Secretary for inflation.
(B) Socially and economically disadvantaged individuals.--The
term ``socially and economically disadvantaged individuals'' has the
meaning such term has under section 8(d) of the Small Business Act
(15 U.S.C. 637(d)) and relevant subcontracting regulations
promulgated pursuant thereto; except that women shall be presumed to
be socially and economically disadvantaged individuals for purposes
of this subsection.
* * * * *
(4) Uniform certification.--The Secretary shall establish
minimum uniform criteria for State governments to use in certifying
whether a concern qualifies for purposes of this subsection. Such
minimum uniform criteria shall include but not be limited to on-site
visits, personal interviews, licenses, analysis of stock ownership,
listing of equipment, analysis of bonding capacity, listing of work
completed, resume of principal owners, financial capacity, and type
of work preferred.
While the language Sec. 1626(e) is broad, the terms used in the two
statutes are not identical. Section 1626(e) refers to ``minority and
economically disadvantaged business enterprise[s]'', while the
Department's statutes refer to ``small business concerns owned and
controlled by socially and economically disadvantaged individuals.''
Requirements applicable to the former need not necessarily apply to the
latter.
The legislative history of Sec. 1626(e) lends support to
distinguishing the two statutes. The following excerpt from House
Report 102-673 suggests that the intent of Congress in enacting this
provision was to focus on direct Federal procurement programs:
[The statute] amends section [1626(e)] of ANCSA to clarify that
Alaska Native Corporations are minority and economically
disadvantaged business enterprises for the purposes of implementing
the SBA programs * * * This section would further clarify that
Alaska Native Corporations and their subsidiary companies are
minority and economically disadvantaged business enterprises for
purposes of qualifying for participation in federal contracting and
subcontracting programs, the largest of which include the SBA 8(a)
program and the Department of Defense Small and Disadvantaged
Business Program. These programs were established to increase the
participation of certain segments of the population that have
historically been denied access to Federal procurement activities.
While this section eliminates the need for Alaska Native
Corporations or their subsidiaries to prove their ``economic''
disadvantage the corporations would still be required to meet size
requirements as small businesses. This will continue to be
determined on a case-by-case basis. (Id. at 19.)
This statute, in other words, was meant to apply to direct Federal
procurement programs like the 8(a) program or the DOD SBD program,
rather than a program involving state and local procurements reimbursed
by DOT financial assistance.
The TEA-21 program is a more recent, more specific statute
governing DOT recipients' programs. In contrast, the older, more
general section 1626(e) evinces no specific intent to govern the DOT
DBE program. There is no evidence that Congress, in enacting section
1626(e), had any awareness of or intent to alter the DOT DBE program.
A number of provisions of the TEA-21 statute suggest that Congress
intended to impose specific requirements for the DOT program, without
regard to other more general statutory references. For example, the
$16.6 million size cap and the uniform certification requirements
suggest that Congress wanted the eligibility for the DOT program to be
determined in very specific ways, giving no hint that they intended
these specific requirements to be overridden in the case of ANCs.
The Department concludes that section 1626(e) is distinguishable
from the DOT DBE statutes, and that the latter govern the
implementation of the DBE program. The Department is not compelled to
alter its approach to certification in the case of ANCs.
[[Page 5122]]
Section 26.81 What Are the Requirements for Unified Certification
Programs?
As was the case following the 1992 NPRM, a significant majority of
the large number of commenters addressing the issue favored
implementing the proposed UCP requirement, which the final rule retains
largely as proposed. A few commenters suggested that airports be
included in UCPs for concession purposes as well as for FAA-assisted
contracting, because there are not any significant differences between
the certification standards for concessionaires and contractors (the
only exception is size standards, which are easy to apply). We agree,
and the final rule does not make an exception for concessions
(regardless of the CFR part in which the concessions provisions
appear). Some commenters wanted either a longer or shorter
implementation period than the SNPRM proposed, but we believe the
proposal is a good middle ground between the goal of establishing UCPs
as soon as possible and the time recipients will need to resolve
organizational, operational, and funding issues.
There were a number of comments and questions about details of the
UCP provision. One recipient wondered whether a UCP may or must be
separate from a recipient and what the legal liability implications of
various arrangements might be. As far as the rule is concerned, a UCP
can either be situated within a recipient's organization or elsewhere.
Recipients can take state law concerning liability into account in
determining how best to structure a UCP in their state. Another
recipient asked if existing UCPs could be exempted from submitting
plans for approval. Rather than being exempted, we believe that it
would be appropriate for such UCPs to submit their existing plans. They
would have to change them only to the extent needed to conform to the
requirements of the rule.
Some commenters asked about the relationship of UCPs to recipients.
For example, should a recipient be able to certify a firm that the UCP
had not certified (or whose application the UCP had not yet acted on)
or refuse to recognize the UCP certification of a firm the recipient
did not think should be eligible? In both cases, the answer is no.
Allowing this kind of discretion would fatally undermine the ``one-stop
shopping'' rationale of UCPs. However, a recipient could, like any
other party, initiate a third-party challenge to a UCP certification
action, the result of which could be appealed to DOT.
We would emphasize that the form of the UCP is a matter for
negotiation among DOT recipients in a state, and this regulation does
not prescribe its organization. A number of models are available,
including single state agencies, consortia of recipients that hire a
contractor or share the workload among themselves, mandatory
reciprocity among recipients, etc. It might be conceivable for a UCP to
be a ``virtual entity'' that is not resident in any particular
location. What matters is that the UCP meet the functional requirements
of this rule and actually provide one-stop shopping service to
applicants. The final rule adds a provision to clarify that UCPs--even
when not part of a recipient's own organization--must comply with all
provisions of this rule concerning certification and nondiscrimination.
Recipients cannot use a UCP that does not do so. For example, if a UCP
fails to comply with part 26 certification standards and procedures, or
discriminates against certain applicants, the Secretary reserves the
right to direct recipients not to use the UCP, effectively
``decertifying'' the UCP for purposes of DOT-assisted programs. In this
case, which we hope will never happen, the Department would work with
recipients in the state on interim measures and replacement of the
erring UCP.
The SNPRM proposed ``pre-certification.'' That is, the UCP would
have to certify a firm before the firm became eligible to participate
as a DBE in a contract. The application could not be submitted as a
last-minute request in connection with a procurement action, which
could lead to hasty and inaccurate certification decisions. Commenters
were divided on this issue, with most expressing doubts about the
concept. The Department believes that avoiding last-minute (and
especially post-bid opening) applications is important to an orderly
and accurate certification process, so we are retaining this
requirement. However, we are modifying the timing of the requirement,
by requiring that certification take place before the bid/offer due
date, rather than before the issuance of the solicitation. The
certification action must be completed by this date in order for the
firm's proposed work on the particular contract to be credited toward
DBE goals. It is not enough for the application to have been submitted
by the deadline.
The SNPRM proposed that, once UCPs were up and running, a UCP in
State A would not have to process an application from a firm whose
principal place of business was in State B unless State B had first
certified the firm. Most commenters supported this proposal, one noting
that it would help eliminate problems of having to make costly out-of-
state site visits. It would also potentially reduce confusion caused by
multiple, and potentially conflicting, outcomes in certification
decisions. One commenter was concerned that this provision would lead
to ``free-rider'' problems among recipients. The Department will be
alert to this possibility, but we do not see it as precluding going
forward with this provision. We have added a provision making explicit
that when State B has certified a firm, it would have an obligation to
send copies of the information and documents it had on the firm to
State A when the firm applied there.
All save one of the comments on mandatory reciprocity opposed the
concept. That is, commenters favored UCPs being able to choose whether
or not to accept certification decisions made by other UCPs. The
Department urges UCPs to band together in multi-state or regional
alliances, but we believe that it is best to leave reciprocity
discretionary. Mandatory reciprocity, even among UCPs, could lead to
forum shopping problems.
UCPs will have a common directory, which will have to be maintained
in electronic form (i.e., on the internet). One commenter suggested
that this electronic directory be updated daily. We think this comment
has merit, and the final rule will require recipients to keep a running
update of the electronic directory, making changes as they occur.
Section 26.83 What Procedures Do Recipients Follow in Making
Certification Decisions?
Commenters generally supported this certification process section,
and we are adopting it with only minor changes. Commenters suggested
that provision for electronic filing of applications be discretionary
rather than mandatory. We agree, and the final rule does not mandate
development of electronic filing systems. Some commenters remained
concerned about site visits and asked for more guidance on the subject.
We intend to provide future guidance on this subject.
Most commenters who addressed the subject favored the development
of a mandatory, nationwide, standard DOT application form for DBE
eligibility. A number of commenters supplied the forms they use as
examples. We believe that this is a good idea, which will help avoid
confusion among applicants in a nationwide program. However, we have
[[Page 5123]]
not yet developed a form for this purpose. The final rule reserves a
requirement for recipients to use a uniform form. We intend to work on
developing such a form during the next year, in consultation with
recipients and applicants. Meanwhile, recipients can continue to use
existing forms, modified as necessary to conform to the requirements of
this part.
The SNPRM said recipients could charge a reasonable fee to
applicants. A majority of commenters, both recipients and DBEs, opposed
the idea of a fee or said it should be capped at a low figure. Fees are
not mandatory, and they would be limited, under the final rule, to
modest application fees (not intended to recover the cost of the
certification process). However, if a recipient wants to charge a
modest application fee, we do not see that it is inconsistent with the
nature of the program to allow it to do so. Fee waivers would be
required if necessary (i.e., a firm who showed they could not afford
it). All fees would have to be approved by the concerned OA as part of
the DBE program approval process, which would preclude excessive fees.
Given that reciprocity is discretionary among recipients, we
thought it would be useful to spell out the options a recipient has
when presented by an applicant with the information that another
recipient has certified the firm. The recipient may accept the other
recipient's certification without any additional procedures. The
recipient can make an independent decision based, in whole or in part,
on the information developed by the first recipient (e.g., application
forms, supporting documents, reports of site visits). The recipient may
make the applicant start an entire new application process. The choice
among these options is up to the recipient. (As noted above, UCPs will
have these same options.)
Most commenters on the subject supported the three-year term for
certifications. Some wanted a shorter or longer period. We believe the
three-year term is appropriate, particularly given the safeguards of
annual and update affidavits that the rule provides. In response to a
few comments that recipients should have longer than the proposed 21
days after a change in circumstances to submit an update affidavit, we
have extended the period to 30 days. If recipients want to have a
longer term in their DBE programs than the three years provided in the
rule, they can do so, with the Department's approval, as part of their
DBE programs.
A few recipients said that the 90-day period for making decisions
on applications (with the possibility of a 60-day extension) was too
short. Particularly since this clock does not begin ticking until a
complete application, including necessary supporting documentation, is
received from the applicant, we do not think this time frame is
unreasonable. We would urge recipients and applicants to work together
to resolve minor errors or data gaps during the assembly of the
package, before this time period begins to run.
Section 26.85 What Rules Govern Recipients' Denials of Initial
Requests for Certification?
A modest number of commenters addressed this section, most of whom
supported it as proposed. One commenter noted that it was appropriate
to permit minor errors to be corrected in an application without
invoking the 12-month reapplication waiting period. We agree, and we
urge recipients to follow such a policy. Most commenters thought 12
months was a good length for a reapplication period. A few opposed the
idea of a waiting period or thought a shorter period was appropriate.
The rule keeps 12 months, but permits recipients to seek DOT approval,
through the DBE program review process, for shorter periods.
Section 26.87 What Procedures Does a Recipient Use To Remove a DBE's
Eligibility?
As long ago as 1983, the Department (in the preamble to the first
DBE rule) strongly urged recipients to use appropriate due process
procedures for decertification actions. Recipient procedures are still
inconsistent and, in some cases, inadequate, in this respect. Quite
recently, for example, litigation forced one recipient to rescind a
decertification of an apparently ineligible firm because it had failed
to provide administrative due process. We believe that proper due
process procedures are crucial to maintaining the integrity of this
program. The majority of commenters agreed, though a number of
commenters had concerns about particular provisions of the SNPRM
proposal.
Some recipients, for example, thought separation of functions was
an unnecessary requirement, or too burdensome, particularly for small
recipients. We believe separation of functions is essential: there
cannot be a fair proceeding if the same party acts as prosecutor and
judge. We believe that the burdens are modest, particularly in the
context of state DOTs and statewide UCPs. We acknowledge that for small
recipients, like small airports and transit authorities, small staffs
may create problems in establishing separation of functions (e.g., if
there is only one person in the organization who is knowledgeable about
the DBE program). For this reason, the rule will permit small
recipients to comply with this requirement to the extent feasible until
UCPs are in operation (at which time the UCPs would have to ensure
separation of functions in all such cases). The organizational scheme
for providing separation of functions will be part of each recipient's
DBE program. In the case of a small recipient, if the DBE program
showed that other alternatives (e.g., the airport using the transit
authority's DBE officer as the decisionmaker in decertification
actions, and vice-versa) were unavailable, the Department could approve
something less than ideal separation of functions for the short term
before the UCP becomes operational. In reviewing certification appeals
from such recipients, the Department would take into account the
absence of separation of functions.
It is very important that the decisionmaker be someone who is
familiar with the DBE certification requirements of this part. The
decisionmaker need not be an administrative law judge or some similar
official; a knowledgeable program official is preferable to an ALJ who
lacks familiarity with the program.
Another aspect of the due process requirements that commenters
addressed was the requirement for a record of the hearing, which some
commenters found to be burdensome. We want to emphasize that, while
recipients have to keep a hearing record (including a verbatim record
of the hearing), they do not need to produce a transcript unless there
is an appeal. A hearing record is essential, because DOT appellate
review is a review of the administrative record.
Some commenters suggested deleting two provisions. One of these
allowed recipients to impose a sort of administrative temporary
restraining order on firms pending a final decertification decision.
The other allowed the effect of a decertification decision to be
retroactive to the date of the complaint. The Department agrees that
these two provisions could lead to unfairness, and so we have deleted
them.
Section 26.89 What Is the Process for Certification Appeals to the
Department of Transportation?
Several commenters addressed this section, supporting it with a few
requests for modification. Some
[[Page 5124]]
commenters wanted a time limit for DOT consideration of appeals. We
have added a provision saying that if DOT takes longer than 180 days
from the time we receive a complete package, we will write everyone
concerned with an explanation of the delay and a new target date for
completion. Some commenters thought a different time limit for appeals
to the Department (e.g., 180 days) would be beneficial. We believe that
90 days is enough time for someone to decide whether a decision of a
recipient or UCP should be appealed and write a letter to DOT. This
time period starts to run from the date of the final recipient decision
on the matter. DOT can accept late-filed appeals on the basis of a
showing of good cause (e.g., factors beyond the control of the
appellant). Some recipients thought that more time might be necessary
to compile an administrative record, so we have permitted DOT to grant
extensions for good cause. Generally, however, the Department will
adhere to the 90-day time period in order to prevent delays in the
appeals process. As a clarification, we have added a provision that all
recipients involved must provide administrative record material to DOT
when there is an appeal. For example, State A has relied on the
information gathered by State B to certify Firm X. A competitor files
an ineligibility complaint with State A, which decertifies the firm.
Firm X appeals to the Department. Both State A and State B must provide
their administrative record materials to DOT for purposes of the
appeal. (The material would be provided to the Departmental Office of
Civil Rights.)
Section 26.91 What Actions Do Recipients Take Following DOT
Certification Appeal Decisions?
There were few comments concerning this section. Some comments
suggested DOT appeal decisions should have mandatory nationwide effect.
That is if DOT upheld the decertification action of Recipient A,
Recipients B, C, D, E, etc. should automatically decertify the firm.
This approach is inconsistent with the administrative review of the
record approach this rule takes for appeals to DOT.
A DOT decision that A's decertification was supported by
substantial evidence is not a DOT decision that the firm is ineligible.
It is only a finding that A had enough evidence to decertify the firm.
Other results might also be supported by substantial evidence.
Nevertheless, when the Department takes action on an appeal, other
recipients would be well advised to review their own decisions to see
if any new proceedings are appropriate. One comment suggested the
Department should explain a refusal to accept a complaint. This is
already the Department's practice.
The SNPRM included a proposal to permit direct third-party
complaints to the Department. There were few comments on this proposal,
which would have continued an existing DOT practice. Some of these
comments suggested dropping this provision, saying it made more sense
to have all certification matters handled at the recipient level in the
first instance. Others raised procedural issues (e.g., the possibility
of the Department holding de novo hearings). The Department has
reconsidered this proposal, and we have decided to delete it. We
believe it will avoid administrative confusion and simplify procedures
for everyone if all certification actions begin at the recipient level,
with DOT appellate review on the administrative record.
Subpart F--Compliance and Enforcement
There were very few comments concerning this subpart, which we are
adopting as proposed. One section has been added to reflect language in
TEA-21 that prohibits sanctions against recipients for noncompliance in
situations where compliance is precluded by a final Federal court order
finding the program unconstitutional.
DBE Participation in Airport Concessions
The Department proposed a number of changes to its airport
concessions DBE program rule in the 1997 SNPRM. We received a
substantial number of comments on these proposals. The Department is
continuing to work on its responses to these comments, as well as on
refinements of the rule to ensure that it is narrowly tailored. This
work is not complete. Rather than postpone issuance of the rest of the
rule pending completion of this work, we are not issuing final
concessions provisions at this time. The existing concessions
provisions of 49 CFR part 23 will remain in place pending completion of
the revised rule.
Regulatory Analyses and Notices
Executive Order 12866
This rule is a significant rule under Executive Order 12866,
because of the substantial public interest concerning and policy
importance of programs to ensure nondiscrimination in Federally-
assisted contracting. It also affects a wide variety of parties,
including recipients in three important DOT financial assistance
programs and the DBE and non-DBE contractors that work for them. It has
been reviewed by the Office of Management and Budget. It is also a
significant rule for purposes of the Department's Regulatory Policies
and Procedures.
We do not believe that the rule will have significant economic
impacts, however. In evaluating the potential economic impact of this
rule, we begin by noting that it does not create a new program. It
simply revises the rule governing an existing program. The economic
impacts of the DBE program are created by the existing regulation and
the statutes that mandate it, not by these revisions. The changes that
we propose in this program are likely to have some positive economic
impacts. For example, ``one-stop shopping'' and clearer standards in
certification are likely to reduce costs for small businesses applying
for DBE certification, as well as reducing administrative burdens on
recipients.
The rule's ``narrow tailoring'' changes are likely to be neutral in
terms of their overall economic impact. These could have some
distributive impacts (e.g., if the proposed goal-setting mechanism
results in changes in DBE goals, a different mix of firms may work on
recipients' contracts), but there would probably not be net gains or
losses to the economy. There could be some short-term costs to
recipients owing to changes in program administration resulting from
``narrow tailoring,'' however.
In any event, the economic impacts are quite speculative and appear
nearly impossible to quantify. Comments did not provide, and the
Department does not have, any significant information that would allow
the Department to estimate any such impacts.
Regulatory Flexibility Act Analysis
The DBE program is aimed at improving contracting opportunities for
small businesses owned and controlled by socially and economically
disadvantaged individuals. Virtually all the businesses it affects are
small entities. There is no doubt that a DBE rule always affects a
substantial number of small entities.
This rule, while improving program administration and facilitating
DBE participation (e.g., by making the certification process clearer)
and responding to legal developments, appears essentially cost-neutral
with respect to small entities in general (as noted above, the one-stop
shopping feature is intended to benefit small entities seeking to
participate). It does
[[Page 5125]]
not impose new burdens or costs on small entities, compared to the
existing rule. It does not affect the total funds or business
opportunities available to small businesses that seek to work in DOT
financial assistance programs. To the extent that the proposals in this
rule (e.g., with respect to changes in the methods used to set overall
goals) lead to different goals than the existing rule, some small firms
may gain, and others lose, business.
There is no data of which the Department is aware that would permit
us, at this time, to measure the distributive effects of the revisions
on various types of small entities. It is likely that any attempt to
gauge these effects would be highly speculative. For this reason, we
are not able to make a quantitative, or even a precise qualitative,
estimate of these effects.
Paperwork Reduction Act
A number of provisions of this rule involve information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA). One
of these provisions, concerning a report of DBE achievements that
recipients make to the Department, is the subject of an existing OMB
approval under the PRA.
With one exception, the other information collection requirements
of the rule continue existing part 23 requirements, major elements of
the DBE program that recipients and contractors have been implementing
since 1980 or 1983. While the final rule modifies these requirements in
some ways, the Department believes the overall burden of these
requirements will remain the same or shrink. These requirements are the
following:
Firms applying for DBE certification must provide
information to recipients to allow them to make eligibility decisions.
Currently certified firms must provide information to recipients to
allow them to review the firms' continuing eligibility. (After the UCP
requirements of the rule are implemented, the burdens of the
certification provisions should be substantially reduced.)
When contractors bid on prime contracts that have contract
goals, they must document their DBE participation and/or the good faith
efforts they have made to meet the contract goals. (Given the final
rule's emphasis on race-neutral measures, it is likely the burden in
this area will be reduced.)
Recipients must maintain a directory of certified DBE
firms. (Once UCPs are implemented, there will be 52 consolidated
directories rather than the hundreds now required, reducing burdens
substantially.)
Recipients must calculate overall goals and transmit them
to the Department for approval. (The process of setting overall goals
is more flexible, but may also be more complex, than under part 23. As
they make their transition to the final rule's goal-setting process
during the first years of implementation, recipients may temporarily
expend more hours than in the past on information-related tasks.)
Recipients must have a DBE program approved by the
Department. (The final rule includes a one-time requirement to submit a
revised program document making changes to conform to the new
regulation.)
The Department estimates that these program elements will result in a
total of approximately 1.58 million burden hours to recipients and
contractors combined during the first year of implementation and
approximately 1.47 million annual burden hours thereafter.
The final rule also includes one new information collection
element. It calls for recipients to collect and maintain data
concerning both DBE and non-DBE bidders on DOT-assisted contracts. This
information is intended to assist recipients in making more precise
determinations of the availability of DBEs and the shape of the ``level
playing field'' the maintenance of which is a major objective of the
rule. The Department estimates that this requirement will add 254,595
burden hours in the first year of implementation. This figure is
projected to decline to 193,261 hours in the second year and to 161,218
hours in the third and subsequent years.
Both as the result of comments and what the Department learns as it
implements the DBE program under part 26, it is possible for the
Department's information needs and the way we meet them to change.
Sometimes the way we collect information can be changed informally
(e.g., by guidance telling recipients they need not repeat information
that does not change significantly from year to year). In other
circumstances, a technical amendment to the regulation may be needed.
In any case, the Department will remain sensitive to situations in
which modifying information collection requirements becomes
appropriate.
As required by the PRA, the Department has submitted an information
collection approval request to OMB. Organizations and individuals
desiring to submit comments on information collection requirements
should direct them to the Department's docket for this rulemaking. You
may also submit copies of your comments to the Office of Information
and Regulatory Affairs (OIRA), OMB, Room 10235, New Executive Office
Building, Washington, DC, 20503; Attention: Desk Officer for U.S.
Department of Transportation.
The Department considers comments by the public on information
collections for several purposes:
Evaluating the necessity of information collections for
the proper performance of the Department's functions, including whether
the information has practical utility.
Evaluating the accuracy of the Department's estimate of
the burden of the information collections, including the validity of
the methods and assumptions used.
Enhancing the quality, usefulness, and clarity of the
information to be collected.
Minimizing the burden of the collection of information on
respondents, including through the use of electronic and other methods.
The Department points out that, with the exception of the bid data
collection, all the information collection elements discussed in this
section of the preamble have not only been part of the Department's DBE
program for many years, but have also been the subject of extensive
public comment following the 1992 NPRM and 1997 SNPRM. Among the over
900 comments received in response to these notices were a number
addressing administrative burden issues surrounding these program
elements. In this final rule, the Department has responded to these
comments.
OMB is required to make a decision concerning information
collections within 30-60 days of the publication of this notice.
Therefore, for best effect, comments should be received by DOT/OMB
within 30 days of publication. Following receipt of OMB approval, the
Department will publish a Federal Register notice containing the
applicable OMB approval numbers.
Federalism
The rule does not have sufficient Federalism impacts to warrant the
preparation of a Federalism assessment. While the rule concerns the
activities of state and local governments in DOT financial assistance
programs, the rule does not significantly alter the role of state and
local governments vis-a-vis DOT from the present part 23. The
availability of program waivers could allow greater flexibility for
state and local participants, however.
List of Subjects
49 CFR Part 23
Administrative practice and procedure, Airports, Civil rights,
[[Page 5126]]
Concessions, Government contracts, Grant programs--transportation,
Minority businesses, Reporting and recordkeeping requirements.
49 CFR Part 26
Administrative practice and procedure, Airports, Civil rights,
Government contracts, Grant programs--transportation, Highways and
roads, Mass transportation, Minority businesses, Reporting and
recordkeeping requirements.
Issued this 8th day of January, 1999, at Washington, DC.
Rodney E. Slater,
Secretary of Transportation.
For the reasons set forth in the preamble, the Department amends 49
CFR subtitle A as follows:
PART 23--PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISE IN
AIRPORT CONCESSIONS
1. Revise the heading of 49 CFR part 23 as set forth above.
2. Revise the authority citation for 49 CFR part 23 to read as
follows:
Authority: 42 U.S.C. 200d et seq.; 49 U.S.C. 47107 and 47123;
Executive Order 12138, 3 CFR, 1979 Comp., p. 393.
Subparts A, C, D, and E--[Removed and Reserved]
3. Remove and reserve subparts A, C, D, and E of part 23.
Sec. 23.89 [Amended]
4. Amend Sec. 23.89 as follows:
a. In the definition of ``disadvantaged business,'' remove the
words ``Sec. 23.61 of subpart D of this part'' and add the words ``49
CFR part 26''; and remove the words ``Sec. 23.61'' in the last line of
the definition and add the words ``49 CFR part 26''.
b. In the definition of ``small business concern,'' paragraph (b),
remove the words ``Sec. 23.43(d)'' and add the words ``Sec. 23.43(d) in
effect prior to March 4, 1999 (See 49 CFR Parts 1 to 99 revised as of
October 1, 1998.)''.
c. In the definition of ``socially and economically disadvantaged
individuals,'' remove the words ``Sec. 23.61 of subpart D of this
part'' and add ``49 CFR part 26''.
Sec. 23.93 [Amended]
5. Amend Sec. 23.93(a) introductory text by removing the words
``Sec. 23.7'' and adding the words ``Sec. 26.7''.
Sec. 23.95 [Amended]
6. Amend Sec. 23.95(a)(1) by removing the words ``based on the
factors listed in Sec. 23.45(g)(5)'' and adding the words ``consistent
with the process for setting overall goals set forth in 49 CFR 26.45''.
7. In addition, amend Sec. 23.95 as follows:
a. In paragraph (f)(1), remove the words ``Sec. 23.51'' and add the
words ``49 CFR part 26, subpart E'';
b. In paragraph (f)(2), remove the words ``Except as provided in
Sec. 23.51(c), each'' and add ``Each'';
c. Remove paragraph (f)(5);
d. In paragraph (g)(1), remove the words ``Sec. 23.53'' and add the
words ``49 CFR part 26, subpart D''.
Sec. 23.97 [Amended]
8. Amend Sec. 23.97 by removing the words ``Sec. 23.55'' and adding
the words ``49 CFR 26.89''.
Sec. 23.11 [Removed]
9. Remove Sec. 23.111.
10. Add a new 49 CFR part 26, to read as follows:
PART 26--PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN
DEPARTMENT OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS
Subpart A--General
Sec.
26.1 What are the objectives of this part?
26.3 To whom does this part apply?
26.5 What do the terms used in this part mean?
26.7 What discriminatory actions are forbidden?
26.9 How does the Department issue guidance and interpretations
under this part?
26.11 What records do recipients keep and report?
26.13 What assurances must recipients and contractors make?
26.15 How can recipients apply for exemptions or waivers?
Subpart B--Administrative Requirements for DBE Programs for Federally-
Assisted Contracting
26.21 Who must have a DBE program?
26.23 What is the requirement for a policy statement?
26.25 What is the requirement for a liaison officer?
26.27 What efforts must recipients make concerning DBE financial
institutions?
26.29 What prompt payment mechanisms may recipients have?
26.31 What requirements pertain to the DBE directory?
26.33 What steps must a recipient take to address overconcentration
of DBEs in certain types of work?
26.35 What role do business development and mentor-protege programs
have in the DBE program?
26.37 What are a recipient's responsibilities for monitoring the
performance of other program participants?
Subpart C--Goals, Good Faith Efforts, and Counting
26.41 What is the role of the statutory 10 percent goal in this
program?
26.43 Can recipients use set-asides or quotas as part of this
program?
26.45 How do recipients set overall goals?
26.47 Can recipients be penalized for failing to meet overall
goals?
26.49 How are overall goals established for transit vehicle
manufacturers?
26.51 What means do recipients use to meet overall goals?
26.53 What are the good faith efforts procedures recipients follow
in situations where there are contract goals?
26.55 How is DBE participation counted toward goals?
Subpart D--Certification Standards
26.61 How are burdens of proof allocated in the certification
process?
26.63 What rules govern group membership determinations?
26.65 What rules govern business size determinations?
26.67 What rules govern determinations of social and economic
disadvantage?
26.69 What rules govern determinations of ownership?
26.71 What rules govern determinations concerning control?
26.73 What are other rules affecting certification?
Subpart E--Certification Procedures
26.81 What are the requirements for Unified Certification Programs?
26.83 What procedures do recipients follow in making certification
decisions?
26.85 What rules govern recipients' denials of initial requests for
certification?
26.87 What procedures does a recipient use to remove a DBE's
eligibility?
26.89 What is the process for certification appeals to the
Department of Transportation?
26.91 What actions do recipients take following DOT certification
appeal decisions?
Subpart F--Compliance and Enforcement
26.101 What compliance procedures apply to recipients?
26.103 What enforcement actions apply in FHWA and FTA programs?
26.105 What enforcement actions apply in FAA Programs?
26.107 What enforcement actions apply to firms participating in the
DBE program?
26.109 What are the rules governing information, confidentiality,
cooperation, and intimidation or retaliation?
Appendix A to part 26--Guidance Concerning Good Faith Efforts
Appendix B to part 26--Forms [Reserved]
Appendix C to part 26--DBE Business Development Program Guidelines
Appendix D to part 26--Mentor-Protege Program Guidelines
Appendix E to part 26--Individual Determinations of Social and
Economic
Disadvantage
Authority: 23 U.S.C. 324; 42 U.S.C. 2000d et seq.); 49 U.S.C
1615, 47107, 47113, 47123;
[[Page 5127]]
Sec. 1101(b), Pub. L. 105-178, 112 Stat. 107, 113.
Subpart A--General
Sec. 26.1 What are the objectives of this part?
This part seeks to achieve several objectives:
(a) To ensure nondiscrimination in the award and administration of
DOT-assisted contracts in the Department's highway, transit, and
airport financial assistance programs;
(b) To create a level playing field on which DBEs can compete
fairly for DOT-assisted contracts;
(c) To ensure that the Department's DBE program is narrowly
tailored in accordance with applicable law;
(d) To ensure that only firms that fully meet this part's
eligibility standards are permitted to participate as DBEs;
(e) To help remove barriers to the participation of DBEs in DOT-
assisted contracts;
(f) To assist the development of firms that can compete
successfully in the marketplace outside the DBE program; and
(g) To provide appropriate flexibility to recipients of Federal
financial assistance in establishing and providing opportunities for
DBEs.
Sec. 26.3 To whom does this part apply?
(a) If you are a recipient of any of the following types of funds,
this part applies to you:
(1) Federal-aid highway funds authorized under Titles I (other than
Part B) and V of the Intermodal Surface Transportation Efficiency Act
of 1991 (ISTEA), Pub. L. 102-240, 105 Stat. 1914, or Titles I, III, and
V of the Transportation Equity Act for the 21st Century (TEA-21), Pub.
L. 105-178, 112 Stat. 107.
(2) Federal transit funds authorized by Titles I, III, V and VI of
ISTEA, Pub. L. 102-240 or by Federal transit laws in Title 49, U.S.
Code, or Titles I, III, and V of the TEA-21, Pub. L. 105-178.
(3) Airport funds authorized by 49 U.S.C. 47101, et seq.
(b) [Reserved]
(c) If you are letting a contract, and that contract is to be
performed entirely outside the United States, its territories and
possessions, Puerto Rico, Guam, or the Northern Marianas Islands, this
part does not apply to the contract.
(d) If you are letting a contract in which DOT financial assistance
does not participate, this part does not apply to the contract.
26.5 What do the terms used in this part mean?
Affiliation has the same meaning the term has in the Small Business
Administration (SBA) regulations, 13 CFR part 121.
(1) Except as otherwise provided in 13 CFR part 121, concerns are
affiliates of each other when, either directly or indirectly:
(i) One concern controls or has the power to control the other; or
(ii) A third party or parties controls or has the power to control
both; or
(iii) An identity of interest between or among parties exists such
that affiliation may be found.
(2) In determining whether affiliation exists, it is necessary to
consider all appropriate factors, including common ownership, common
management, and contractual relationships. Affiliates must be
considered together in determining whether a concern meets small
business size criteria and the statutory cap on the participation of
firms in the DBE program.
Alaska Native means a citizen of the United States who is a person
of one-fourth degree or more Alaskan Indian (including Tsimshian
Indians not enrolled in the Metlaktla Indian Community), Eskimo, or
Aleut blood, or a combination of those bloodlines. The term includes,
in the absence of proof of a minimum blood quantum, any citizen whom a
Native village or Native group regards as an Alaska Native if their
father or mother is regarded as an Alaska Native.
Alaska Native Corporation (ANC) means any Regional Corporation,
Village Corporation, Urban Corporation, or Group Corporation organized
under the laws of the State of Alaska in accordance with the Alaska
Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.).
Compliance means that a recipient has correctly implemented the
requirements of this part.
Contract means a legally binding relationship obligating a seller
to furnish supplies or services (including, but not limited to,
construction and professional services) and the buyer to pay for them.
Contractor means one who participates, through a contract or
subcontract (at any tier), in a DOT-assisted highway, transit, or
airport program.
Department or DOT means the U.S. Department of Transportation,
including the Office of the Secretary, the Federal Highway
Administration (FHWA), the Federal Transit Administration (FTA), and
the Federal Aviation Administration (FAA).
Disadvantaged business enterprise or DBE means a for-profit small
business concern--
(1) That is at least 51 percent owned by one or more individuals
who are both socially and economically disadvantaged or, in the case of
a corporation, in which 51 percent of the stock is owned by one or more
such individuals; and
(2) Whose management and daily business operations are controlled
by one or more of the socially and economically disadvantaged
individuals who own it.
DOT-assisted contract means any contract between a recipient and a
contractor (at any tier) funded in whole or in part with DOT financial
assistance, including letters of credit or loan guarantees, except a
contract solely for the purchase of land.
Good faith efforts means efforts to achieve a DBE goal or other
requirement of this part which, by their scope, intensity, and
appropriateness to the objective, can reasonably be expected to fulfill
the program requirement.
Immediate family member means father, mother, husband, wife, son,
daughter, brother, sister, grandmother, grandfather, grandson,
granddaughter, mother-in-law, or father-in-law.
Indian tribe means any Indian tribe, band, nation, or other
organized group or community of Indians, including any ANC, which is
recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians, or
is recognized as such by the State in which the tribe, band, nation,
group, or community resides. See definition of ``tribally-owned
concern'' in this section.
Joint venture means an association of a DBE firm and one or more
other firms to carry out a single, for-profit business enterprise, for
which the parties combine their property, capital, efforts, skills and
knowledge, and in which the DBE is responsible for a distinct, clearly
defined portion of the work of the contract and whose share in the
capital contribution, control, management, risks, and profits of the
joint venture are commensurate with its ownership interest.
Native Hawaiian means any individual whose ancestors were natives,
prior to 1778, of the area which now comprises the State of Hawaii.
Native Hawaiian Organization means any community service
organization serving Native Hawaiians in the State of Hawaii which is a
not-for-profit organization chartered by the State of Hawaii, is
controlled by Native Hawaiians, and whose business activities will
principally benefit such Native Hawaiians.
[[Page 5128]]
Noncompliance means that a recipient has not correctly implemented
the requirements of this part.
Operating Administration or OA means any of the following parts of
DOT: the Federal Aviation Administration (FAA), Federal Highway
Administration (FHWA), and Federal Transit Administration (FTA). The
``Administrator'' of an operating administration includes his or her
designees.
Personal net worth means the net value of the assets of an
individual remaining after total liabilities are deducted. An
individual's personal net worth does not include: The individual's
ownership interest in an applicant or participating DBE firm; or the
individual's equity in his or her primary place of residence. An
individual's personal net worth includes only his or her own share of
assets held jointly or as community property with the individual's
spouse.
Primary industry classification means the four digit Standard
Industrial Classification (SIC) code designation which best describes
the primary business of a firm. The SIC code designations are described
in the Standard Industry Classification Manual. As the North American
Industrial Classification System (NAICS) replaces the SIC system,
references to SIC codes and the SIC Manual are deemed to refer to the
NAICS manual and applicable codes. The SIC Manual and the NAICS Manual
are available through the National Technical Information Service (NTIS)
of the U.S. Department of Commerce (Springfield, VA, 22261). NTIS also
makes materials available through its web site (www.ntis.gov/naics).
Primary recipient means a recipient which receives DOT financial
assistance and passes some or all of it on to another recipient.
Principal place of business means the business location where the
individuals who manage the firm's day-to-day operations spend most
working hours and where top management's business records are kept. If
the offices from which management is directed and where business
records are kept are in different locations, the recipient will
determine the principal place of business for DBE program purposes.
Program means any undertaking on a recipient's part to use DOT
financial assistance, authorized by the laws to which this part
applies.
Race-conscious measure or program is one that is focused
specifically on assisting only DBEs, including women-owned DBEs.
Race-neutral measure or program is one that is, or can be, used to
assist all small businesses. For the purposes of this part, race-
neutral includes gender-neutrality.
Recipient is any entity, public or private, to which DOT financial
assistance is extended, whether directly or through another recipient,
through the programs of the FAA, FHWA, or FTA, or who has applied for
such assistance.
Secretary means the Secretary of Transportation or his/her
designee.
Set-aside means a contracting practice restricting eligibility for
the competitive award of a contract solely to DBE firms.
Small Business Administration or SBA means the United States Small
Business Administration.
Small business concern means, with respect to firms seeking to
participate as DBEs in DOT-assisted contracts, a small business concern
as defined pursuant to section 3 of the Small Business Act and Small
Business Administration regulations implementing it (13 CFR part 121)
that also does not exceed the cap on average annual gross receipts
specified in Sec. 26.65(b).
Socially and economically disadvantaged individual means any
individual who is a citizen (or lawfully admitted permanent resident)
of the United States and who is--
(1) Any individual who a recipient finds to be a socially and
economically disadvantaged individual on a case-by-case basis.
(2) Any individual in the following groups, members of which are
rebuttably presumed to be socially and economically disadvantaged:
(i) ``Black Americans,'' which includes persons having origins in
any of the Black racial groups of Africa;
(ii) ``Hispanic Americans,'' which includes persons of Mexican,
Puerto Rican, Cuban, Dominican, Central or South American, or other
Spanish or Portuguese culture or origin, regardless of race;
(iii) ``Native Americans,'' which includes persons who are American
Indians, Eskimos, Aleuts, or Native Hawaiians;
(iv) ``Asian-Pacific Americans,'' which includes persons whose
origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam,
Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the
Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the
Pacific Islands (Republic of Palau), the Commonwealth of the Northern
Marianas Islands, Macao, Fiji, Tonga, Kirbati, Juvalu, Nauru, Federated
States of Micronesia, or Hong Kong;
(v) ``Subcontinent Asian Americans,'' which includes persons whose
origins are from India, Pakistan, Bangladesh, Bhutan, the Maldives
Islands, Nepal or Sri Lanka;
(vi) Women;
(vii) Any additional groups whose members are designated as
socially and economically disadvantaged by the SBA, at such time as the
SBA designation becomes effective.
Tribally-owned concern means any concern at least 51 percent owned
by an Indian tribe as defined in this section.
You refers to a recipient, unless a statement in the text of this
part or the context requires otherwise (i.e., `You must do XYZ' means
that recipients must do XYZ).
Sec. 26.7 What discriminatory actions are forbidden?
(a) You must never exclude any person from participation in, deny
any person the benefits of, or otherwise discriminate against anyone in
connection with the award and performance of any contract covered by
this part on the basis of race, color, sex, or national origin.
(b) In administering your DBE program, you must not, directly or
through contractual or other arrangements, use criteria or methods of
administration that have the effect of defeating or substantially
impairing accomplishment of the objectives of the program with respect
to individuals of a particular race, color, sex, or national origin.
Sec. 26.9 How does the Department issue guidance and interpretations
under this part?
(a) This part applies instead of subparts A and C through E of 49
CFR part 23 in effect prior to March 4, 1999. (See 49 CFR Parts 1 to
99, revised as of October 1, 1998.) Only guidance and interpretations
(including interpretations set forth in certification appeal decisions)
consistent with this part 26 and issued after March 4, 1999 have
definitive, binding effect in implementing the provisions of this part
and constitute the official position of the Department of
Transportation.
(b) The Secretary of Transportation, Office of the Secretary of
Transportation, FHWA, FTA, and FAA may issue written interpretations of
or written guidance concerning this part. Written interpretations and
guidance are valid and binding, and constitute the official position of
the Department of Transportation, only if they are issued over the
signature of the Secretary of Transportation or if they contain the
following statement:
[[Page 5129]]
The General Counsel of the Department of Transportation has
reviewed this document and approved it as consistent with the
language and intent of 49 CFR part 26.
Sec. 26.11 What records do recipients keep and report?
(a) [Reserved]
(b) You must continue to provide data about your DBE program to the
Department as directed by DOT operating administrations.
(c) You must create and maintain a bidders list, consisting of all
firms bidding on prime contracts and bidding or quoting subcontracts on
DOT-assisted projects. For every firm, the following information must
be included:
(1) Firm name;
(2) Firm address;
(3) Firm's status as a DBE or non-DBE;
(4) The age of the firm; and
(5) The annual gross receipts of the firm.
Sec. Section 26.13 What assurances must recipients and contractors
make?
(a) Each financial assistance agreement you sign with a DOT
operating administration (or a primary recipient) must include the
following assurance:
The recipient shall not discriminate on the basis of race,
color, national origin, or sex in the award and performance of any
DOT-assisted contract or in the administration of its DBE program or
the requirements of 49 CFR part 26. The recipient shall take all
necessary and reasonable steps under 49 CFR part 26 to ensure
nondiscrimination in the award and administration of DOT-assisted
contracts. The recipient's DBE program, as required by 49 CFR part
26 and as approved by DOT, is incorporated by reference in this
agreement. Implementation of this program is a legal obligation and
failure to carry out its terms shall be treated as a violation of
this agreement. Upon notification to the recipient of its failure to
carry out its approved program, the Department may impose sanctions
as provided for under part 26 and may, in appropriate cases, refer
the matter for enforcement under 18 U.S.C. 1001 and/or the Program
Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).
(b) Each contract you sign with a contractor (and each subcontract
the prime contractor signs with a subcontractor) must include the
following assurance:
The contractor, sub recipient or subcontractor shall not
discriminate on the basis of race, color, national origin, or sex in
the performance of this contract. The contractor shall carry out
applicable requirements of 49 CFR part 26 in the award and
administration of DOT-assisted contracts. Failure by the contractor
to carry out these requirements is a material breach of this
contract, which may result in the termination of this contract or
such other remedy as the recipient deems appropriate.
Sec. 26.15 How can recipients apply for exemptions or waivers?
(a) You can apply for an exemption from any provision of this part.
To apply, you must request the exemption in writing from the Office of
the Secretary of Transportation, FHWA, FTA, or FAA. The Secretary will
grant the request only if it documents special or exceptional
circumstances, not likely to be generally applicable, and not
contemplated in connection with the rulemaking that established this
part, that make your compliance with a specific provision of this part
impractical. You must agree to take any steps that the Department
specifies to comply with the intent of the provision from which an
exemption is granted. The Secretary will issue a written response to
all exemption requests.
(b) You can apply for a waiver of any provision of Subpart B or C
of this part including, but not limited to, any provisions regarding
administrative requirements, overall goals, contract goals or good
faith efforts. Program waivers are for the purpose of authorizing you
to operate a DBE program that achieves the objectives of this part by
means that may differ from one or more of the requirements of Subpart B
or C of this part. To receive a program waiver, you must follow these
procedures:
(1) You must apply through the concerned operating administration.
The application must include a specific program proposal and address
how you will meet the criteria of paragraph (b)(2) of this section.
Before submitting your application, you must have had public
participation in developing your proposal, including consultation with
the DBE community and at least one public hearing. Your application
must include a summary of the public participation process and the
information gathered through it.
(2) Your application must show that--
(i) There is a reasonable basis to conclude that you could achieve
a level of DBE participation consistent with the objectives of this
part using different or innovative means other than those that are
provided in subpart B or C of this part;
(ii) Conditions in your jurisdiction are appropriate for
implementing the proposal;
(iii) Your proposal would prevent discrimination against any
individual or group in access to contracting opportunities or other
benefits of the program; and
(iv) Your proposal is consistent with applicable law and program
requirements of the concerned operating administration's financial
assistance program.
(3) The Secretary has the authority to approve your application. If
the Secretary grants your application, you may administer your DBE
program as provided in your proposal, subject to the following
conditions:
(i) DBE eligibility is determined as provided in subparts D and E
of this part, and DBE participation is counted as provided in
Sec. 26.49;
(ii) Your level of DBE participation continues to be consistent
with the objectives of this part;
(iii) There is a reasonable limitation on the duration of your
modified program; and
(iv) Any other conditions the Secretary makes on the grant of the
waiver.
(4) The Secretary may end a program waiver at any time and require
you to comply with this part's provisions. The Secretary may also
extend the waiver, if he or she determines that all requirements of
paragraphs (b)(2) and (3) of this section continue to be met. Any such
extension shall be for no longer than period originally set for the
duration of the program.
Subpart B--Administrative Requirements for DBE Programs for
Federally-Assisted Contracting
Sec. 26.21 Who must have a DBE program?
(a) If you are in one of these categories and let DOT-assisted
contracts, you must have a DBE program meeting the requirements of this
part:
(1) All FHWA recipients receiving funds authorized by a statute to
which this part applies;
(2) FTA recipients that receive $250,000 or more in FTA planning,
capital, and/or operating assistance in a Federal fiscal year;
(3) FAA recipients that receive a grant of $250,000 or more for
airport planning or development.
(b)(1) You must submit a DBE program conforming to this part by
August 31, 1999 to the concerned operating administration (OA). Once
the OA has approved your program, the approval counts for all of your
DOT-assisted programs (except that goals are reviewed and approved by
the particular operating administration that provides funding for your
DOT-assisted contracts).
(2) You do not have to submit regular updates of your DBE programs,
as long as you remain in compliance. However, you must submit
significant changes in the program for approval.
(c) You are not eligible to receive DOT financial assistance unless
DOT has
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approved your DBE program and you are in compliance with it and this
part. You must continue to carry out your program until all funds from
DOT financial assistance have been expended.
Sec. 26.23 What is the requirement for a policy statement?
You must issue a signed and dated policy statement that expresses
your commitment to your DBE program, states its objectives, and
outlines responsibilities for its implementation. You must circulate
the statement throughout your organization and to the DBE and non-DBE
business communities that perform work on your DOT-assisted contracts.
Sec. 26.25 What is the requirement for a liaison officer?
You must have a DBE liaison officer, who shall have direct,
independent access to your Chief Executive Officer concerning DBE
program matters. The liaison officer shall be responsible for
implementing all aspects of your DBE program. You must also have
adequate staff to administer the program in compliance with this part.
26.27 What efforts must recipients make concerning DBE financial
institutions?
You must thoroughly investigate the full extent of services offered
by financial institutions owned and controlled by socially and
economically disadvantaged individuals in your community and make
reasonable efforts to use these institutions. You must also encourage
prime contractors to use such institutions.
Sec. 26.29 What prompt payment mechanisms must recipients have?
(a) You must establish, as part of your DBE program, a contract
clause to require prime contractors to pay subcontractors for
satisfactory performance of their contracts no later than a specific
number of days from receipt of each payment you make to the prime
contractor. This clause must also require the prompt return of
retainage payments from the prime contractor to the subcontractor
within a specific number of days after the subcontractor's work is
satisfactorily completed.
(1) This clause may provide for appropriate penalties for failure
to comply, the terms and conditions of which you set.
(2) This clause may also provide that any delay or postponement of
payment among the parties may take place only for good cause, with your
prior written approval.
(b) You may also establish, as part of your DBE program, any of the
following additional mechanisms to ensure prompt payment:
(1) A contract clause that requires prime contractors to include in
their subcontracts language providing that prime contractors and
subcontractors will use appropriate alternative dispute resolution
mechanisms to resolve payment disputes. You may specify the nature of
such mechanisms.
(2) A contract clause providing that the prime contractor will not
be reimbursed for work performed by subcontractors unless and until the
prime contractor ensures that the subcontractors are promptly paid for
the work they have performed.
(3) Other mechanisms, consistent with this part and applicable
state and local law, to ensure that DBEs and other contractors are
fully and promptly paid.
Sec. 26.31 What requirements pertain to the DBE directory?
You must maintain and make available to interested persons a
directory identifying all firms eligible to participate as DBEs in your
program. In the listing for each firm, you must include its address,
phone number, and the types of work the firm has been certified to
perform as a DBE. You must revise your directory at least annually and
make updated information available to contractors and the public on
request.
Sec. 26.33 What steps must a recipient take to address
overconcentration of DBEs in certain types of work?
(a) If you determine that DBE firms are so overconcentrated in a
certain type of work as to unduly burden the opportunity of non-DBE
firms to participate in this type of work, you must devise appropriate
measures to address this overconcentration.
(b) These measures may include the use of incentives, technical
assistance, business development programs, mentor-protege programs, and
other appropriate measures designed to assist DBEs in performing work
outside of the specific field in which you have determined that non-
DBEs are unduly burdened. You may also consider varying your use of
contract goals, to the extent consistent with Sec. 26.51, to unsure
that non-DBEs are not unfairly prevented from competing for
subcontracts.
(c) You must obtain the approval of the concerned DOT operating
administration for your determination of overconcentration and the
measures you devise to address it. Once approved, the measures become
part of your DBE program.
Sec. 26.35 What role do business development and mentor-protege
programs have in the DBE program?
(a) You may or, if an operating administration directs you to, you
must establish a DBE business development program (BDP) to assist firms
in gaining the ability to compete successfully in the marketplace
outside the DBE program. You may require a DBE firm, as a condition of
receiving assistance through the BDP, to agree to terminate its
participation in the DBE program after a certain time has passed or
certain objectives have been reached. See Appendix C of this part for
guidance on administering BDP programs.
(b) As part of a BDP or separately, you may establish a ``mentor-
protege'' program, in which another DBE or non-DBE firm is the
principal source of business development assistance to a DBE firm.
(1) Only firms you have certified as DBEs before they are proposed
for participation in a mentor-protege program are eligible to
participate in the mentor-protege program.
(2) During the course of the mentor-protege relationship, you must:
(i) Not award DBE credit to a non-DBE mentor firm for using its own
protege firm for more than one half of its goal on any contract let by
the recipient; and
(ii) Not award DBE credit to a non-DBE mentor firm for using its
own protege firm for more than every other contract performed by the
protege firm.
(3) For purposes of making determinations of business size under
this part, you must not treat protege firms as affiliates of mentor
firms, when both firms are participating under an approved mentor-
protege program. See Appendix D of this part for guidance concerning
the operation of mentor-protege programs.
(c) Your BDPs and mentor-protege programs must be approved by the
concerned operating administration before you implement them. Once
approved, they become part of your DBE program.
Sec. 26.37 What are a recipient's responsibilities for monitoring the
performance of other program participants?
(a) You must implement appropriate mechanisms to ensure compliance
with the part's requirements by all program participants (e.g.,
applying legal and contract remedies available under Federal, state and
local law). You must set forth these mechanisms in your DBE program.
(b) Your DBE program must also include a monitoring and enforcement
mechanism to verify that the work committed to DBEs at contract award
is
[[Page 5131]]
actually performed by the DBEs. This mechanism must provide for a
running tally of actual DBE attainments (e.g., payments actually made
to DBE firms) and include a provision ensuring that DBE participation
is credited toward overall or contract goals only when payments are
actually made to DBE firms.
Subpart C--Goals, Good Faith Efforts, and Counting
Sec. 26.41 What is the role of the statutory 10 percent goal in this
program?
(a) The statutes authorizing this program provide that, except to
the extent the Secretary determines otherwise, not less than 10 percent
of the authorized funds are to be expended with DBEs.
(b) This 10 percent goal is an aspirational goal at the national
level, which the Department uses as a tool in evaluating and monitoring
DBEs' opportunities to participate in DOT-assisted contracts.
(c) The national 10 percent goal does not authorize or require
recipients to set overall or contract goals at the 10 percent level, or
any other particular level, or to take any special administrative steps
if their goals are above or below 10 percent.
Sec. 26.43 Can recipients use set-asides or quotas as part of this
program?
(a) You are not permitted to use quotas for DBEs on DOT-assisted
contracts subject to this part.
(b) You may not set-aside contracts for DBEs on DOT-assisted
contracts subject to this part, except that, in limited and extreme
circumstances, you may use set-asides when no other method could be
reasonably expected to redress egregious instances of discrimination.
Sec. 26.45 How do recipients set overall goals?
(a) You must set an overall goal for DBE participation in your DOT-
assisted contracts.
(b) Your overall goal must be based on demonstrable evidence of the
availability of ready, willing and able DBEs relative to all businesses
ready, willing and able to participate on your DOT-assisted contracts
(hereafter, the ``relative availability of DBEs''). The goal must
reflect your determination of the level of DBE participation you would
expect absent the effects of discrimination. You cannot simply rely on
either the 10 percent national goal, your previous overall goal or past
DBE participation rates in your program without reference to the
relative availability of DBEs in your market.
(c) Step 1. You must begin your goal setting process by determining
a base figure for the relative availability of DBEs. The following are
examples of approaches that you may take toward determining a base
figure. These examples are provided as a starting point for your goal
setting process. Any percentage figure derived from one of these
examples should be considered a basis from which you begin when
examining all evidence available in your jurisdiction. These examples
are not intended as an exhaustive list. Other methods or combinations
of methods to determine a base figure may be used, subject to approval
by the concerned operating administration.
(1) Use DBE Directories and Census Bureau Data. Determine the
number of ready, willing and able DBEs in your market from your DBE
directory. Using the Census Bureau's County Business Pattern (CBP) data
base, determine the number of all ready, willing and able businesses
available in your market that perform work in the same SIC codes.
(Information about the CBP data base may be obtained from the Census
Bureau at their web site, www.census.gov/epcd/cbp/view/cbpview.html.)
Divide the number of DBEs by the number of all businesses to derive a
base figure for the relative availability of DBEs in your market.
(2) Use a bidders list. Determine the number of DBEs that have bid
or quoted on your DOT-assisted prime contracts or subcontracts in the
previous year. Determine the number of all businesses that have bid or
quoted on prime or subcontracts in the same time period. Divide the
number of DBE bidders and quoters by the number for all businesses to
derive a base figure for the relative availability of DBEs in your
market.
(3) Use data from a disparity study. Use a percentage figure
derived from data in a valid, applicable disparity study.
(4) Use the goal of another DOT recipient. If another DOT recipient
in the same, or substantially similar, market has set an overall goal
in compliance with this rule, you may use that goal as a base figure
for your goal.
(5) Alternative methods. Subject to the approval of the DOT
operating administration, you may use other methods to determine a base
figure for your overall goal. Any methodology you choose must be based
on demonstrable evidence of local market conditions and be designed to
ultimately attain a goal that is rationally related to the relative
availability of DBEs in your market.
(d) Step 2. Once you have calculated a base figure, you must
examine all of the evidence available in your jurisdiction to determine
what adjustment, if any, is needed to the base figure in order to
arrive at your overall goal.
(1) There are many types of evidence that must be considered when
adjusting the base figure. These include:
(i) The current capacity of DBEs to perform work in your DOT-
assisted contracting program, as measured by the volume of work DBEs
have performed in recent years;
(ii) Evidence from disparity studies conducted anywhere within your
jurisdiction, to the extent it is not already accounted for in your
base figure; and
(iii) If your base figure is the goal of another recipient, you
must adjust it for differences in your local market and your
contracting program.
(2) You may also consider available evidence from related fields
that affect the opportunities for DBEs to form, grow and compete. These
include, but are not limited to:
(i) Statistical disparities in the ability of DBEs to get the
financing, bonding and insurance required to participate in your
program;
(ii) Data on employment, self-employment, education, training and
union apprenticeship programs, to the extent you can relate it to the
opportunities for DBEs to perform in your program.
(3) If you attempt to make an adjustment to your base figure to
account for the continuing effects of past discrimination (often called
the ``but for'' factor) or the effects of an ongoing DBE program, the
adjustment must be based on demonstrable evidence that is logically and
directly related to the effect for which the adjustment is sought.
(e) Once you have determined a percentage figure in accordance with
paragraphs (c) and (d) of this section, you should express your overall
goal as follows:
(1) If you are an FHWA recipient, as a percentage of all Federal-
aid highway funds you will expend in FHWA-assisted contracts in the
forthcoming fiscal year;
(2) If you are an FTA or FAA recipient, as a percentage of all FTA
or FAA funds (exclusive of FTA funds to be used for the purchase of
transit vehicles) that you will expend in FTA or FAA-assisted contracts
in the forthcoming fiscal year. In appropriate cases, the FTA or FAA
Administrator may permit you to express your overall goal as a
percentage of funds for a particular grant or project or group of
grants and/or projects.
[[Page 5132]]
(f)(1) If you set overall goals on a fiscal year basis, you must
submit them to the applicable DOT operating administration for review
on August 1 of each year, unless the Administrator of the concerned
operating administration establishes a different submission date.
(2) If you are an FTA or FAA recipient and set your overall goal on
a project or grant basis, you must submit the goal for review at a time
determined by the FTA or FAA Administrator.
(3) You must include with your overall goal submission a
description of the methodology you used to establish the goal,
including your base figure and the evidence with which it was
calculated, and the adjustments you made to the base figure and the
evidence relied on for the adjustments. You should also include a
summary listing of the relevant available evidence in your jurisdiction
and, where applicable, an explanation of why you did not use that
evidence to adjust your base figure. You must also include your
projection of the portions of the overall goal you expect to meet
through race-neutral and race-conscious measures, respectively (see
Sec. 26.51(c)).
(4) You are not required to obtain prior operating administration
concurrence with the your overall goal. However, if the operating
administration's review suggests that your overall goal has not been
correctly calculated, or that your method for calculating goals is
inadequate, the operating administration may, after consulting with
you, adjust your overall goal or require that you do so. The adjusted
overall goal is binding on you.
(5) If you need additional time to collect data or take other steps
to develop an approach to setting overall goals, you may request the
approval of the concerned operating administration for an interim goal
and/or goal-setting mechanism. Such a mechanism must:
(i) Reflect the relative availability of DBEs in your local market
to the maximum extent feasible given the data available to you; and
(ii) Avoid imposing undue burdens on non-DBEs.
(g) In establishing an overall goal, you must provide for public
participation. This public participation must include:
(1) Consultation with minority, women's and general contractor
groups, community organizations, and other officials or organizations
which could be expected to have information concerning the availability
of disadvantaged and non-disadvantaged businesses, the effects of
discrimination on opportunities for DBEs, and your efforts to establish
a level playing field for the participation of DBEs.
(2) A published notice announcing your proposed overall goal,
informing the public that the proposed goal and its rationale are
available for inspection during normal business hours at your principal
office for 30 days following the date of the notice, and informing the
public that you and the Department will accept comments on the goals
for 45 days from the date of the notice. The notice must include
addresses to which comments may be sent, and you must publish it in
general circulation media and available minority-focused media and
trade association publications.
(h) Your overall goals must provide for participation by all
certified DBEs and must not be subdivided into group-specific goals.
Sec. 26.47 Can recipients be penalized for failing to meet overall
goals?
(a) You cannot be penalized, or treated by the Department as being
in noncompliance with this rule, because your DBE participation falls
short of your overall goal, unless you have failed to administer your
program in good faith.
(b) If you do not have an approved DBE program or overall goal, or
if you fail to implement your program in good faith, you are in
noncompliance with this part.
Sec. 26.49 How are overall goals established for transit vehicle
manufacturers?
(a) If you are an FTA recipient, you must require in your DBE
program that each transit vehicle manufacturer, as a condition of being
authorized to bid or propose on FTA-assisted transit vehicle
procurements, certify that it has complied with the requirements of
this section. You do not include FTA assistance used in transit vehicle
procurements in the base amount from which your overall goal is
calculated.
(b) If you are a transit vehicle manufacturer, you must establish
and submit for FTA's approval an annual overall percentage goal. In
setting your overall goal, you should be guided, to the extent
applicable, by the principles underlying Sec. 26.45. The base from
which you calculate this goal is the amount of FTA financial assistance
included in transit vehicle contracts you will perform during the
fiscal year in question. You must exclude from this base funds
attributable to work performed outside the United States and its
territories, possessions, and commonwealths. The requirements and
procedures of this part with respect to submission and approval of
overall goals apply to you as they do to recipients.
(c) As a transit vehicle manufacturer, you may make the
certification required by this section if you have submitted the goal
this section requires and FTA has approved it or not disapproved it.
(d) As a recipient, you may, with FTA approval, establish project-
specific goals for DBE participation in the procurement of transit
vehicles in lieu of complying through the procedures of this section.
(e) If you are an FHWA or FAA recipient, you may, with FHWA or FAA
approval, use the procedures of this section with respect to
procurements of vehicles or specialized equipment. If you choose to do
so, then the manufacturers of this equipment must meet the same
requirements (including goal approval by FHWA or FAA) as transit
vehicle manufacturers must meet in FTA-assisted procurements.
Sec. 26.51 What means do recipients use to meet overall goals?
(a) You must meet the maximum feasible portion of your overall goal
by using race-neutral means of facilitating DBE participation. Race-
neutral DBE participation includes any time a DBE wins a prime contract
through customary competitive procurement procedures, is awarded a
subcontract on a prime contract that does not carry a DBE goal, or even
if there is a DBE goal, wins a subcontract from a prime contractor that
did not consider its DBE status in making the award (e.g., a prime
contractor that uses a strict low bid system to award subcontracts).
(b) Race-neutral means include, but are not limited to, the
following:
(1) Arranging solicitations, times for the presentation of bids,
quantities, specifications, and delivery schedules in ways that
facilitate DBE, and other small businesses, participation (e.g.,
unbundling large contracts to make them more accessible to small
businesses, requiring or encouraging prime contractors to subcontract
portions of work that they might otherwise perform with their own
forces);
(2) Providing assistance in overcoming limitations such as
inability to obtain bonding or financing (e.g., by such means as
simplifying the bonding process, reducing bonding requirements,
eliminating the impact of surety costs from bids, and providing
services to help DBEs, and other small businesses, obtain bonding and
financing);
(3) Providing technical assistance and other services;
(4) Carrying out information and communications programs on
contracting procedures and specific
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contract opportunities (e.g., ensuring the inclusion of DBEs, and other
small businesses, on recipient mailing lists for bidders; ensuring the
dissemination to bidders on prime contracts of lists of potential
subcontractors; provision of information in languages other than
English, where appropriate);
(5) Implementing a supportive services program to develop and
improve immediate and long-term business management, record keeping,
and financial and accounting capability for DBEs and other small
businesses;
(6) Providing services to help DBEs, and other small businesses,
improve long-term development, increase opportunities to participate in
a variety of kinds of work, handle increasingly significant projects,
and achieve eventual self-sufficiency;
(7) Establishing a program to assist new, start-up firms,
particularly in fields in which DBE participation has historically been
low;
(8) Ensuring distribution of your DBE directory, through print and
electronic means, to the widest feasible universe of potential prime
contractors; and
(9) Assisting DBEs, and other small businesses, to develop their
capability to utilize emerging technology and conduct business through
electronic media.
(c) Each time you submit your overall goal for review by the
concerned operating administration, you must also submit your
projection of the portion of the goal that you expect to meet through
race-neutral means and your basis for that projection. This projection
is subject to approval by the concerned operating administration, in
conjunction with its review of your overall goal.
(d) You must establish contract goals to meet any portion of your
overall goal you do not project being able to meet using race-neutral
means.
(e) The following provisions apply to the use of contract goals:
(1) You may use contract goals only on those DOT-assisted contracts
that have subcontracting possibilities.
(2) You are not required to set a contract goal on every DOT-
assisted contract. You are not required to set each contract goal at
the same percentage level as the overall goal. The goal for a specific
contract may be higher or lower than that percentage level of the
overall goal, depending on such factors as the type of work involved,
the location of the work, and the availability of DBEs for the work of
the particular contract. However, over the period covered by your
overall goal, you must set contract goals so that they will
cumulatively result in meeting any portion of your overall goal you do
not project being able to meet through the use of race-neutral means.
(3) Operating administration approval of each contract goal is not
necessarily required. However, operating administrations may review and
approve or disapprove any contract goal you establish.
(4) Your contract goals must provide for participation by all
certified DBEs and must not be subdivided into group-specific goals.
(f) To ensure that your DBE program continues to be narrowly
tailored to overcome the effects of discrimination, you must adjust
your use of contract goals as follows:
(1) If your approved projection under paragraph (c) of this section
estimates that you can meet your entire overall goal for a given year
through race-neutral means, you must implement your program without
setting contract goals during that year.
Example to Paragraph (f)(1): Your overall goal for Year I is 12
percent. You estimate that you can obtain 12 percent or more DBE
participation through the use of race-neutral measures, without any
use of contract goals. In this case, you do not set any contract
goals for the contracts that will be performed in Year I.
(2) If, during the course of any year in which you are using
contract goals, you determine that you will exceed your overall goal,
you must reduce or eliminate the use of contract goals to the extent
necessary to ensure that the use of contract goals does not result in
exceeding the overall goal. If you determine that you will fall short
of your overall goal, then you must make appropriate modifications in
your use of race-neutral and/or race-conscious measures to allow you to
meet the overall goal.
Example to Paragraph (f)(2): In Year II, your overall goal is 12
percent. You have estimated that you can obtain 5 percent DBE
participation through use of race-neutral measures. You therefore
plan to obtain the remaining 7 percent participation through use of
DBE goals. By September, you have already obtained 11 percent DBE
participation for the year. For contracts let during the remainder
of the year, you use contract goals only to the extent necessary to
obtain an additional one percent DBE participation. However, if you
determine in September that your participation for the year is
likely to be only 8 percent total, then you would increase your use
of race-neutral and/or race-conscious means during the remainder of
the year in order to achieve your overall goal.
(3) If the DBE participation you have obtained by race-neutral
means alone meets or exceeds your overall goals for two consecutive
years, you are not required to make a projection of the amount of your
goal you can meet using such means in the next year. You do not set
contract goals on any contracts in the next year. You continue using
only race-neutral means to meet your overall goals unless and until you
do not meet your overall goal for a year.
Example to Paragraph (f)(3): Your overall goal for Years I and
Year II is 10 percent. The DBE participation you obtain through
race-neutral measures alone is 10 percent or more in each year. (For
this purpose, it does not matter whether you obtained additional DBE
participation through using contract goals in these years.) In Year
III and following years, you do not need to make a projection under
paragraph (c) of this section of the portion of your overall goal
you expect to meet using race-neutral means. You simply use race-
neutral means to achieve your overall goals. However, if in Year VI
your DBE participation falls short of your overall goal, then you
must make a paragraph (c) projection for Year VII and, if necessary,
resume use of contract goals in that year.
(4) If you obtain DBE participation that exceeds your overall goal
in two consecutive years through the use of contract goals (i.e., not
through the use of race-neutral means alone), you must reduce your use
of contract goals proportionately in the following year.
Example to Paragraph (f)(4): In Years I and II, your overall
goal is 12 percent, and you obtain 14 and 16 percent DBE
participation, respectively. You have exceeded your goals over the
two-year period by an average of 25 percent. In Year III, your
overall goal is again 12 percent, and your paragraph (c) projection
estimates that you will obtain 4 percent DBE participation through
race-neutral means and 8 percent through contract goals. You then
reduce the contract goal projection by 25 percent (i.e., from 8 to 6
percent) and set contract goals accordingly during the year. If in
Year III you obtain 11 percent participation, you do not use this
contract goal adjustment mechanism for Year IV, because there have
not been two consecutive years of exceeding overall goals.
(g) In any year in which you project meeting part of your goal
through race-neutral means and the remainder through contract goals,
you must maintain data separately on DBE achievements in those
contracts with and without contract goals, respectively. You must
report this data to the concerned operating administration as provided
in Sec. 26.11.
Sec. 26.53 What are the good faith efforts procedures recipients
follow in situations where there are contract goals?
(a) When you have established a DBE contract goal, you must award
the contract only to a bidder/offeror who makes good faith efforts to
meet it. You must determine that a bidder/offeror has made good faith
efforts if the bidder/
[[Page 5134]]
offeror does either of the following things:
(1) Documents that it has obtained enough DBE participation to meet
the goal; or
(2) Documents that it made adequate good faith efforts to meet the
goal, even though it did not succeed in obtaining enough DBE
participation to do so. If the bidder/offeror does document adequate
good faith efforts, you must not deny award of the contract on the
basis that the bidder/offeror failed to meet the goal. See Appendix A
of this part for guidance in determining the adequacy of a bidder/
offeror's good faith efforts.
(b) In your solicitations for DOT-assisted contracts for which a
contract goal has been established, you must require the following:
(1) Award of the contract will be conditioned on meeting the
requirements of this section;
(2) All bidders/offerors will be required to submit the following
information to the recipient, at the time provided in paragraph (b)(3)
of this section:
(i) The names and addresses of DBE firms that will participate in
the contract;
(ii) A description of the work that each DBE will perform;
(iii) The dollar amount of the participation of each DBE firm
participating;
(iv) Written documentation of the bidder/offeror's commitment to
use a DBE subcontractor whose participation it submits to meet a
contract goal;
(v) Written confirmation from the DBE that it is participating in
the contract as provided in the prime contractor's commitment; and
(vi) If the contract goal is not met, evidence of good faith
efforts (see Appendix A of this part); and
(3) At your discretion, the bidder/offeror must present the
information required by paragraph (b)(2) of this section--
(i) Under sealed bid procedures, as a matter of responsiveness, or
with initial proposals, under contract negotiation procedures; or
(ii) At any time before you commit yourself to the performance of
the contract by the bidder/offeror, as a matter of responsibility.
(c) You must make sure all information is complete and accurate and
adequately documents the bidder/offeror's good faith efforts before
committing yourself to the performance of the contract by the bidder/
offeror.
(d) If you determine that the apparent successful bidder/offeror
has failed to meet the requirements of paragraph (a) of this section,
you must, before awarding the contract, provide the bidder/offeror an
opportunity for administrative reconsideration.
(1) As part of this reconsideration, the bidder/offeror must have
the opportunity to provide written documentation or argument concerning
the issue of whether it met the goal or made adequate good faith
efforts to do so.
(2) Your decision on reconsideration must be made by an official
who did not take part in the original determination that the bidder/
offeror failed to meet the goal or make adequate good faith efforts to
do so.
(3) The bidder/offeror must have the opportunity to meet in person
with your reconsideration official to discuss the issue of whether it
met the goal or made adequate good faith efforts to do so.
(4) You must send the bidder/offeror a written decision on
reconsideration, explaining the basis for finding that the bidder did
or did not meet the goal or make adequate good faith efforts to do so.
(5) The result of the reconsideration process is not
administratively appealable to the Department of Transportation.
(e) In a ``design-build'' or ``turnkey'' contracting situation, in
which the recipient lets a master contract to a contractor, who in turn
lets subsequent subcontracts for the work of the project, a recipient
may establish a goal for the project. The master contractor then
establishes contract goals, as appropriate, for the subcontracts it
lets. Recipients must maintain oversight of the master contractor's
activities to ensure that they are conducted consistent with the
requirements of this part.
(f)(1) You must require that a prime contractor not terminate for
convenience a DBE subcontractor listed in response to paragraph (b)(2)
of this section (or an approved substitute DBE firm) and then perform
the work of the terminated subcontract with its own forces or those of
an affiliate, without your prior written consent.
(2) When a DBE subcontractor is terminated, or fails to complete
its work on the contract for any reason, you must require the prime
contractor to make good faith efforts to find another DBE subcontractor
to substitute for the original DBE. These good faith efforts shall be
directed at finding another DBE to perform at least the same amount of
work under the contract as the DBE that was terminated, to the extent
needed to meet the contract goal you established for the procurement.
(3) You must include in each prime contract a provision for
appropriate administrative remedies that you will invoke if the prime
contractor fails to comply with the requirements of this section.
(g) You must apply the requirements of this section to DBE bidders/
offerors for prime contracts. In determining whether a DBE bidder/
offeror for a prime contract has met a contract goal, you count the
work the DBE has committed to performing with its own forces as well as
the work that it has committed to be performed by DBE subcontractors
and DBE suppliers.
Sec. 26.55 How is DBE participation counted toward goals?
(a) When a DBE participates in a contract, you count only the value
of the work actually performed by the DBE toward DBE goals.
(1) Count the entire amount of that portion of a construction
contract (or other contract not covered by paragraph (a)(2) of this
section) that is performed by the DBE's own forces. Include the cost of
supplies and materials obtained by the DBE for the work of the
contract, including supplies purchased or equipment leased by the DBE
(except supplies and equipment the DBE subcontractor purchases or
leases from the prime contractor or its affiliate).
(2) Count the entire amount of fees or commissions charged by a DBE
firm for providing a bona fide service, such as professional,
technical, consultant, or managerial services, or for providing bonds
or insurance specifically required for the performance of a DOT-
assisted contract, toward DBE goals, provided you determine the fee to
be reasonable and not excessive as compared with fees customarily
allowed for similar services.
(3) When a DBE subcontracts part of the work of its contract to
another firm, the value of the subcontracted work may be counted toward
DBE goals only if the DBE's subcontractor is itself a DBE. Work that a
DBE subcontracts to a non-DBE firm does not count toward DBE goals.
(b) When a DBE performs as a participant in a joint venture, count
a portion of the total dollar value of the contract equal to the
distinct, clearly defined portion of the work of the contract that the
DBE performs with its own forces toward DBE goals.
(c) Count expenditures to a DBE contractor toward DBE goals only if
the DBE is performing a commercially useful function on that contract.
(1) A DBE performs a commercially useful function when it is
responsible for execution of the work of the contract and is carrying
out its responsibilities
[[Page 5135]]
by actually performing, managing, and supervising the work involved. To
perform a commercially useful function, the DBE must also be
responsible, with respect to materials and supplies used on the
contract, for negotiating price, determining quality and quantity,
ordering the material, and installing (where applicable) and paying for
the material itself. To determine whether a DBE is performing a
commercially useful function, you must evaluate the amount of work
subcontracted, industry practices, whether the amount the firm is to be
paid under the contract is commensurate with the work it is actually
performing and the DBE credit claimed for its performance of the work,
and other relevant factors.
(2) A DBE does not perform a commercially useful function if its
role is limited to that of an extra participant in a transaction,
contract, or project through which funds are passed in order to obtain
the appearance of DBE participation. In determining whether a DBE is
such an extra participant, you must examine similar transactions,
particularly those in which DBEs do not participate.
(3) If a DBE does not perform or exercise responsibility for at
least 30 percent of the total cost of its contract with its own work
force, or the DBE subcontracts a greater portion of the work of a
contract than would be expected on the basis of normal industry
practice for the type of work involved, you must presume that it is not
performing a commercially useful function.
(4) When a DBE is presumed not to be performing a commercially
useful function as provided in paragraph (c)(3) of this section, the
DBE may present evidence to rebut this presumption. You may determine
that the firm is performing a commercially useful function given the
type of work involved and normal industry practices.
(5) Your decisions on commercially useful function matters are
subject to review by the concerned operating administration, but are
not administratively appealable to DOT.
(d) Use the following factors in determining whether a DBE trucking
company is performing a commercially useful function:
(1) The DBE must be responsible for the management and supervision
of the entire trucking operation for which it is responsible on a
particular contract, and there cannot be a contrived arrangement for
the purpose of meeting DBE goals.
(2) The DBE must itself own and operate at least one fully
licensed, insured, and operational truck used on the contract.
(3) The DBE receives credit for the total value of the
transportation services it provides on the contract using trucks it
owns, insures, and operates using drivers it employs.
(4) The DBE may lease trucks from another DBE firm, including an
owner-operator who is certified as a DBE. The DBE who leases trucks
from another DBE receives credit for the total value of the
transportation services the lessee DBE provides on the contract.
(5) The DBE may also lease trucks from a non-DBE firm, including an
owner-operator. The DBE who leases trucks from a non-DBE is entitled to
credit only for the fee or commission it receives as a result of the
lease arrangement. The DBE does not receive credit for the total value
of the transportation services provided by the lessee, since these
services are not provided by a DBE.
(6) For purposes of this paragraph (d), a lease must indicate that
the DBE has exclusive use of and control over the truck. This does not
preclude the leased truck from working for others during the term of
the lease with the consent of the DBE, so long as the lease gives the
DBE absolute priority for use of the leased truck. Leased trucks must
display the name and identification number of the DBE.
(e) Count expenditures with DBEs for materials or supplies toward
DBE goals as provided in the following:
(1)(i) If the materials or supplies are obtained from a DBE
manufacturer, count 100 percent of the cost of the materials or
supplies toward DBE goals.
(ii) For purposes of this paragraph (e)(1), a manufacturer is a
firm that operates or maintains a factory or establishment that
produces, on the premises, the materials, supplies, articles, or
equipment required under the contract and of the general character
described by the specifications.
(2)(i) If the materials or supplies are purchased from a DBE
regular dealer, count 60 percent of the cost of the materials or
supplies toward DBE goals.
(ii) For purposes of this section, a regular dealer is a firm that
owns, operates, or maintains a store, warehouse, or other establishment
in which the materials, supplies, articles or equipment of the general
character described by the specifications and required under the
contract are bought, kept in stock, and regularly sold or leased to the
public in the usual course of business.
(A) To be a regular dealer, the firm must be an established,
regular business that engages, as its principal business and under its
own name, in the purchase and sale or lease of the products in
question.
(B) A person may be a regular dealer in such bulk items as
petroleum products, steel, cement, gravel, stone, or asphalt without
owning, operating, or maintaining a place of business as provided in
this paragraph (e)(2)(ii) if the person both owns and operates
distribution equipment for the products. Any supplementing of regular
dealers' own distribution equipment shall be by a long-term lease
agreement and not on an ad hoc or contract-by-contract basis.
(C) Packagers, brokers, manufacturers' representatives, or other
persons who arrange or expedite transactions are not regular dealers
within the meaning of this paragraph (e)(2).
(3) With respect to materials or supplies purchased from a DBE
which is neither a manufacturer nor a regular dealer, count the entire
amount of fees or commissions charged for assistance in the procurement
of the materials and supplies, or fees or transportation charges for
the delivery of materials or supplies required on a job site, toward
DBE goals, provided you determine the fees to be reasonable and not
excessive as compared with fees customarily allowed for similar
services. Do not count any portion of the cost of the materials and
supplies themselves toward DBE goals, however.
(f) If a firm is not currently certified as a DBE in accordance
with the standards of subpart D of this part at the time of the
execution of the contract, do not count the firm's participation toward
any DBE goals, except as provided for in Sec. 26.87(i)).
(g) Do not count the dollar value of work performed under a
contract with a firm after it has ceased to be certified toward your
overall goal.
(h) Do not count the participation of a DBE subcontractor toward
the prime contractor's DBE achievements or your overall goal until the
amount being counted toward the goal has been paid to the DBE.
Subpart D--Certification Standards
Sec. 26.61 How are burdens of proof allocated in the certification
process?
(a) In determining whether to certify a firm as eligible to
participate as a DBE, you must apply the standards of this subpart.
(b) The firm seeking certification has the burden of demonstrating
to you, by a preponderance of the evidence, that it meets the
requirements of this subpart concerning group membership or individual
disadvantage, business size, ownership, and control.
(c) You must rebuttably presume that members of the designated
groups
[[Page 5136]]
identified in Sec. 26.67(a) are socially and economically
disadvantaged. This means that they do not have the burden of proving
to you that they are socially and economically disadvantaged. However,
applicants have the obligation to provide you information concerning
their economic disadvantage (see Sec. 26.67).
(d) Individuals who are not presumed to be socially and
economically disadvantaged, and individuals concerning whom the
presumption of disadvantage has been rebutted, have the burden of
proving to you, by a preponderance of the evidence, that they are
socially and economically disadvantaged. (See Appendix E of this part.)
(e) You must make determinations concerning whether individuals and
firms have met their burden of demonstrating group membership,
ownership, control, and social and economic disadvantage (where
disadvantage must be demonstrated on an individual basis) by
considering all the facts in the record, viewed as a whole.
Sec. 26.63 What rules govern group membership determinations?
(a) If you have reason to question whether an individual is a
member of a group that is presumed to be socially and economically
disadvantaged, you must require the individual to demonstrate, by a
preponderance of the evidence, that he or she is a member of the group.
(b) In making such a determination, you must consider whether the
person has held himself out to be a member of the group over a long
period of time prior to application for certification and whether the
person is regarded as a member of the group by the relevant community.
You may require the applicant to produce appropriate documentation of
group membership.
(1) If you determine that an individual claiming to be a member of
a group presumed to be disadvantaged is not a member of a designated
disadvantaged group, the individual must demonstrate social and
economic disadvantage on an individual basis.
(2) Your decisions concerning membership in a designated group are
subject to the certification appeals procedure of Sec. 26.89.
Sec. 26.65 What rules govern business size determinations?
(a) To be an eligible DBE, a firm (including its affiliates) must
be an existing small business, as defined by Small Business
Administration (SBA) standards. You must apply current SBA business
size standard(s) found in 13 CFR part 121 appropriate to the type(s) of
work the firm seeks to perform in DOT-assisted contracts.
(b) Even if it meets the requirements of paragraph (a) of this
section, a firm is not an eligible DBE in any Federal fiscal year if
the firm (including its affiliates) has had average annual gross
receipts, as defined by SBA regulations (see 13 CFR 121.402), over the
firm's previous three fiscal years, in excess of $16.6 million. The
Secretary adjusts this amount for inflation from time to time.
Sec. 26.67 What rules determine social and economic disadvantage?
(a) Presumption of disadvantage. (1) You must rebuttably presume
that citizens of the United States (or lawfully admitted permanent
residents) who are women, Black Americans, Hispanic Americans, Native
Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or
other minorities found to be disadvantaged by the SBA, are socially and
economically disadvantaged individuals. You must require applicants to
submit a signed, notarized certification that each presumptively
disadvantaged owner is, in fact, socially and economically
disadvantaged.
(2)(i) You must require each individual owner of a firm applying to
participate as a DBE whose ownership and control are relied upon for
DBE certification to submit a signed, notarized statement of personal
net worth, with appropriate supporting documentation.
(ii) In determining net worth, you must exclude an individual's
ownership interest in the applicant firm and the individual's equity in
his or her primary residence (except any portion of such equity that is
attributable to excessive withdrawals from the applicant firm). A
contingent liability does not reduce an individual's net worth. The
personal net worth of an individual claiming to be an Alaska Native
will include assets and income from sources other than an Alaska Native
Corporation and exclude any of the following which the individual
receives from any Alaska Native Corporation: cash (including cash
dividends on stock received from an ANC) to the extent that it does
not, in the aggregate, exceed $2,000 per individual per annum; stock
(including stock issued or distributed by an ANC as a dividend or
distribution on stock); a partnership interest; land or an interest in
land (including land or an interest in land received from an ANC as a
dividend or distribution on stock); and an interest in a settlement
trust.
(b) Rebuttal of presumption of disadvantage. (1) If the statement
of personal net worth that an individual submits under paragraph (a)(2)
of this section shows that the individual's personal net worth exceeds
$750,000, the individual's presumption of economic disadvantage is
rebutted. You are not required to have a proceeding under paragraph
(b)(2) of this section in order to rebut the presumption of economic
disadvantage in this case.
(2) If you have a reasonable basis to believe that an individual
who is a member of one of the designated groups is not, in fact,
socially and/or economically disadvantaged you may, at any time, start
a proceeding to determine whether the presumption should be regarded as
rebutted with respect to that individual. Your proceeding must follow
the procedures of Sec. 26.87.
(3) In such a proceeding, you have the burden of demonstrating, by
a preponderance of the evidence, that the individual is not socially
and economically disadvantaged. You may require the individual to
produce information relevant to the determination of his or her
disadvantage.
(4) When an individual's presumption of social and/or economic
disadvantage has been rebutted, his or her ownership and control of the
firm in question cannot be used for purposes of DBE eligibility under
this subpart unless and until he or she makes an individual showing of
social and/or economic disadvantage. If the basis for rebutting the
presumption is a determination that the individual's personal net worth
exceeds $750,000, the individual is no longer eligible for
participation in the program and cannot regain eligibility by making an
individual showing of disadvantage.
(c) 8(a) and SDB Firms. If a firm applying for certification has a
current, valid certification from or recognized by the SBA under the
8(a) or small and disadvantaged business (SDB) program (except an SDB
certification based on the firm's self-certification as an SDB), you
may accept the firm's 8(a) or SDB certification in lieu of conducting
your own certification proceeding, just as you may accept the
certification of another DOT recipient for this purpose. You are not
required to do so, however.
(d) Individual determinations of social and economic disadvantage.
Firms owned and controlled by individuals who are not presumed to be
socially and economically disadvantaged (including individuals whose
presumed disadvantage has been rebutted) may apply for DBE
[[Page 5137]]
certification. You must make a case-by-case determination of whether
each individual whose ownership and control are relied upon for DBE
certification is socially and economically disadvantaged. In such a
proceeding, the applicant firm has the burden of demonstrating to you,
by a preponderance of the evidence, that the individuals who own and
control it are socially and economically disadvantaged. An individual
whose personal net worth exceeds $750,000 shall not be deemed to be
economically disadvantaged. In making these determinations, use the
guidance found in Appendix E of this part. You must require that
applicants provide sufficient information to permit determinations
under the guidance of Appendix E of this part.
Sec. 26.69 What rules govern determinations of ownership?
(a) In determining whether the socially and economically
disadvantaged participants in a firm own the firm, you must consider
all the facts in the record, viewed as a whole.
(b) To be an eligible DBE, a firm must be at least 51 percent owned
by socially and economically disadvantaged individuals.
(1) In the case of a corporation, such individuals must own at
least 51 percent of the each class of voting stock outstanding and 51
percent of the aggregate of all stock outstanding.
(2) In the case of a partnership, 51 percent of each class of
partnership interest must be owned by socially and economically
disadvantaged individuals. Such ownership must be reflected in the
firm's partnership agreement.
(3) In the case of a limited liability company, at least 51 percent
of each class of member interest must be owned by socially and
economically disadvantaged individuals.
(c) The firm's ownership by socially and economically disadvantaged
individuals must be real, substantial, and continuing, going beyond pro
forma ownership of the firm as reflected in ownership documents. The
disadvantaged owners must enjoy the customary incidents of ownership,
and share in the risks and profits commensurate with their ownership
interests, as demonstrated by the substance, not merely the form, of
arrangements.
(d) All securities that constitute ownership of a firm shall be
held directly by disadvantaged persons. Except as provided in this
paragraph (d), no securities or assets held in trust, or by any
guardian for a minor, are considered as held by disadvantaged persons
in determining the ownership of a firm. However, securities or assets
held in trust are regarded as held by a disadvantaged individual for
purposes of determining ownership of the firm, if--
(1) The beneficial owner of securities or assets held in trust is a
disadvantaged individual, and the trustee is the same or another such
individual; or
(2) The beneficial owner of a trust is a disadvantaged individual
who, rather than the trustee, exercises effective control over the
management, policy-making, and daily operational activities of the
firm. Assets held in a revocable living trust may be counted only in
the situation where the same disadvantaged individual is the sole
grantor, beneficiary, and trustee.
(e) The contributions of capital or expertise by the socially and
economically disadvantaged owners to acquire their ownership interests
must be real and substantial. Examples of insufficient contributions
include a promise to contribute capital, an unsecured note payable to
the firm or an owner who is not a disadvantaged individual, or mere
participation in a firm's activities as an employee. Debt instruments
from financial institutions or other organizations that lend funds in
the normal course of their business do not render a firm ineligible,
even if the debtor's ownership interest is security for the loan.
(f) The following requirements apply to situations in which
expertise is relied upon as part of a disadvantaged owner's
contribution to acquire ownership:
(1) The owner's expertise must be--
(i) In a specialized field;
(ii) Of outstanding quality;
(iii) In areas critical to the firm's operations;
(iv) Indispensable to the firm's potential success;
(v) Specific to the type of work the firm performs; and
(vi) Documented in the records of the firm. These records must
clearly show the contribution of expertise and its value to the firm.
(2) The individual whose expertise is relied upon must have a
significant financial investment in the firm.
(g) You must always deem as held by a socially and economically
disadvantaged individual, for purposes of determining ownership, all
interests in a business or other assets obtained by the individual--
(1) As the result of a final property settlement or court order in
a divorce or legal separation, provided that no term or condition of
the agreement or divorce decree is inconsistent with this section; or
(2) Through inheritance, or otherwise because of the death of the
former owner.
(h)(1) You must presume as not being held by a socially and
economically disadvantaged individual, for purposes of determining
ownership, all interests in a business or other assets obtained by the
individual as the result of a gift, or transfer without adequate
consideration, from any non-disadvantaged individual or non-DBE firm
who is--
(i) Involved in the same firm for which the individual is seeking
certification, or an affiliate of that firm;
(ii) Involved in the same or a similar line of business; or
(iii) Engaged in an ongoing business relationship with the firm, or
an affiliate of the firm, for which the individual is seeking
certification.
(2) To overcome this presumption and permit the interests or assets
to be counted, the disadvantaged individual must demonstrate to you, by
clear and convincing evidence, that--
(i) The gift or transfer to the disadvantaged individual was made
for reasons other than obtaining certification as a DBE; and
(ii) The disadvantaged individual actually controls the management,
policy, and operations of the firm, notwithstanding the continuing
participation of a non-disadvantaged individual who provided the gift
or transfer.
(i) You must apply the following rules in situations in which
marital assets form a basis for ownership of a firm:
(1) When marital assets (other than the assets of the business in
question), held jointly or as community property by both spouses, are
used to acquire the ownership interest asserted by one spouse, you must
deem the ownership interest in the firm to have been acquired by that
spouse with his or her own individual resources, provided that the
other spouse irrevocably renounces and transfers all rights in the
ownership interest in the manner sanctioned by the laws of the state in
which either spouse or the firm is domiciled. You do not count a
greater portion of joint or community property assets toward ownership
than state law would recognize as belonging to the socially and
economically disadvantaged owner of the applicant firm.
(2) A copy of the document legally transferring and renouncing the
other spouse's rights in the jointly owned or community assets used to
acquire an ownership interest in the firm must be included as part of
the firm's application for DBE certification.
[[Page 5138]]
(j) You may consider the following factors in determining the
ownership of a firm. However, you must not regard a contribution of
capital as failing to be real and substantial, or find a firm
ineligible, solely because--
(1) A socially and economically disadvantaged individual acquired
his or her ownership interest as the result of a gift, or transfer
without adequate consideration, other than the types set forth in
paragraph (h) of this section;
(2) There is a provision for the co-signature of a spouse who is
not a socially and economically disadvantaged individual on financing
agreements, contracts for the purchase or sale of real or personal
property, bank signature cards, or other documents; or
(3) Ownership of the firm in question or its assets is transferred
for adequate consideration from a spouse who is not a socially and
economically disadvantaged individual to a spouse who is such an
individual. In this case, you must give particularly close and careful
scrutiny to the ownership and control of a firm to ensure that it is
owned and controlled, in substance as well as in form, by a socially
and economically disadvantaged individual.
Sec. 26.71 What rules govern determinations concerning control?
(a) In determining whether socially and economically disadvantaged
owners control a firm, you must consider all the facts in the record,
viewed as a whole.
(b) Only an independent business may be certified as a DBE. An
independent business is one the viability of which does not depend on
its relationship with another firm or firms.
(1) In determining whether a potential DBE is an independent
business, you must scrutinize relationships with non-DBE firms, in such
areas as personnel, facilities, equipment, financial and/or bonding
support, and other resources.
(2) You must consider whether present or recent employer/employee
relationships between the disadvantaged owner(s) of the potential DBE
and non-DBE firms or persons associated with non-DBE firms compromise
the independence of the potential DBE firm.
(3) You must examine the firm's relationships with prime
contractors to determine whether a pattern of exclusive or primary
dealings with a prime contractor compromises the independence of the
potential DBE firm.
(4) In considering factors related to the independence of a
potential DBE firm, you must consider the consistency of relationships
between the potential DBE and non-DBE firms with normal industry
practice.
(c) A DBE firm must not be subject to any formal or informal
restrictions which limit the customary discretion of the socially and
economically disadvantaged owners. There can be no restrictions through
corporate charter provisions, by-law provisions, contracts or any other
formal or informal devices (e.g., cumulative voting rights, voting
powers attached to different classes of stock, employment contracts,
requirements for concurrence by non-disadvantaged partners, conditions
precedent or subsequent, executory agreements, voting trusts,
restrictions on or assignments of voting rights) that prevent the
socially and economically disadvantaged owners, without the cooperation
or vote of any non-disadvantaged individual, from making any business
decision of the firm. This paragraph does not preclude a spousal co-
signature on documents as provided for in Sec. 26.69(j)(2).
(d) The socially and economically disadvantaged owners must possess
the power to direct or cause the direction of the management and
policies of the firm and to make day-to-day as well as long-term
decisions on matters of management, policy and operations.
(1) A disadvantaged owner must hold the highest officer position in
the company (e.g., chief executive officer or president).
(2) In a corporation, disadvantaged owners must control the board
of directors.
(3) In a partnership, one or more disadvantaged owners must serve
as general partners, with control over all partnership decisions.
(e) Individuals who are not socially and economically disadvantaged
may be involved in a DBE firm as owners, managers, employees,
stockholders, officers, and/or directors. Such individuals must not,
however, possess or exercise the power to control the firm, or be
disproportionately responsible for the operation of the firm.
(f) The socially and economically disadvantaged owners of the firm
may delegate various areas of the management, policymaking, or daily
operations of the firm to other participants in the firm, regardless of
whether these participants are socially and economically disadvantaged
individuals. Such delegations of authority must be revocable, and the
socially and economically disadvantaged owners must retain the power to
hire and fire any person to whom such authority is delegated. The
managerial role of the socially and economically disadvantaged owners
in the firm's overall affairs must be such that the recipient can
reasonably conclude that the socially and economically disadvantaged
owners actually exercise control over the firm's operations,
management, and policy.
(g) The socially and economically disadvantaged owners must have an
overall understanding of, and managerial and technical competence and
experience directly related to, the type of business in which the firm
is engaged and the firm's operations. The socially and economically
disadvantaged owners are not required to have experience or expertise
in every critical area of the firm's operations, or to have greater
experience or expertise in a given field than managers or key
employees. The socially and economically disadvantaged owners must have
the ability to intelligently and critically evaluate information
presented by other participants in the firm's activities and to use
this information to make independent decisions concerning the firm's
daily operations, management, and policymaking. Generally, expertise
limited to office management, administration, or bookkeeping functions
unrelated to the principal business activities of the firm is
insufficient to demonstrate control.
(h) If state or local law requires the persons to have a particular
license or other credential in order to own and/or control a certain
type of firm, then the socially and economically disadvantaged persons
who own and control a potential DBE firm of that type must possess the
required license or credential. If state or local law does not require
such a person to have such a license or credential to own and/or
control a firm, you must not deny certification solely on the ground
that the person lacks the license or credential. However, you may take
into account the absence of the license or credential as one factor in
determining whether the socially and economically disadvantaged owners
actually control the firm.
(i)(1) You may consider differences in remuneration between the
socially and economically disadvantaged owners and other participants
in the firm in determining whether to certify a firm as a DBE. Such
consideration shall be in the context of the duties of the persons
involved, normal industry practices, the firm's policy and practice
concerning reinvestment of income, and any other explanations for the
differences proffered by the firm. You may determine that a firm is
controlled by its socially and economically disadvantaged owner
although that
[[Page 5139]]
owner's remuneration is lower than that of some other participants in
the firm.
(2) In a case where a non-disadvantaged individual formerly
controlled the firm, and a socially and economically disadvantaged
individual now controls it, you may consider a difference between the
remuneration of the former and current controller of the firm as a
factor in determining who controls the firm, particularly when the non-
disadvantaged individual remains involved with the firm and continues
to receive greater compensation than the disadvantaged individual.
(j) In order to be viewed as controlling a firm, a socially and
economically disadvantaged owner cannot engage in outside employment or
other business interests that conflict with the management of the firm
or prevent the individual from devoting sufficient time and attention
to the affairs of the firm to control its activities. For example,
absentee ownership of a business and part-time work in a full-time firm
are not viewed as constituting control. However, an individual could be
viewed as controlling a part-time business that operates only on
evenings and/or weekends, if the individual controls it all the time it
is operating.
(k)(1) A socially and economically disadvantaged individual may
control a firm even though one or more of the individual's immediate
family members (who themselves are not socially and economically
disadvantaged individuals) participate in the firm as a manager,
employee, owner, or in another capacity. Except as otherwise provided
in this paragraph, you must make a judgment about the control the
socially and economically disadvantaged owner exercises vis-a-vis other
persons involved in the business as you do in other situations, without
regard to whether or not the other persons are immediate family
members.
(2) If you cannot determine that the socially and economically
disadvantaged owners--as distinct from the family as a whole--control
the firm, then the socially and economically disadvantaged owners have
failed to carry their burden of proof concerning control, even though
they may participate significantly in the firm's activities.
(l) Where a firm was formerly owned and/or controlled by a non-
disadvantaged individual (whether or not an immediate family member),
ownership and/or control were transferred to a socially and
economically disadvantaged individual, and the non-disadvantaged
individual remains involved with the firm in any capacity, the
disadvantaged individual now owning the firm must demonstrate to you,
by clear and convincing evidence, that:
(1) The transfer of ownership and/or control to the disadvantaged
individual was made for reasons other than obtaining certification as a
DBE; and
(2) The disadvantaged individual actually controls the management,
policy, and operations of the firm, notwithstanding the continuing
participation of a non-disadvantaged individual who formerly owned and/
or controlled the firm.
(m) In determining whether a firm is controlled by its socially and
economically disadvantaged owners, you may consider whether the firm
owns equipment necessary to perform its work. However, you must not
determine that a firm is not controlled by socially and economically
disadvantaged individuals solely because the firm leases, rather than
owns, such equipment, where leasing equipment is a normal industry
practice and the lease does not involve a relationship with a prime
contractor or other party that compromises the independence of the
firm.
(n) You must grant certification to a firm only for specific types
of work in which the socially and economically disadvantaged owners
have the ability to control the firm. To become certified in an
additional type of work, the firm need demonstrate to you only that its
socially and economically disadvantaged owners are able to control the
firm with respect to that type of work. You may not, in this situation,
require that the firm be recertified or submit a new application for
certification, but you must verify the disadvantaged owner's control of
the firm in the additional type of work.
(o) A business operating under a franchise or license agreement may
be certified if it meets the standards in this subpart and the
franchiser or licenser is not affiliated with the franchisee or
licensee. In determining whether affiliation exists, you should
generally not consider the restraints relating to standardized quality,
advertising, accounting format, and other provisions imposed on the
franchisee or licensee by the franchise agreement or license, provided
that the franchisee or licensee has the right to profit from its
efforts and bears the risk of loss commensurate with ownership.
Alternatively, even though a franchisee or licensee may not be
controlled by virtue of such provisions in the franchise agreement or
license, affiliation could arise through other means, such as common
management or excessive restrictions on the sale or transfer of the
franchise interest or license.
(p) In order for a partnership to be controlled by socially and
economically disadvantaged individuals, any non-disadvantaged partners
must not have the power, without the specific written concurrence of
the socially and economically disadvantaged partner(s), to
contractually bind the partnership or subject the partnership to
contract or tort liability.
(q) The socially and economically disadvantaged individuals
controlling a firm may use an employee leasing company. The use of such
a company does not preclude the socially and economically disadvantaged
individuals from controlling their firm if they continue to maintain an
employer-employee relationship with the leased employees. This includes
being responsible for hiring, firing, training, assigning, and
otherwise controlling the on-the-job activities of the employees, as
well as ultimate responsibility for wage and tax obligations related to
the employees.
Sec. 26.73 What are other rules affecting certification?
(a)(1) Consideration of whether a firm performs a commercially
useful function or is a regular dealer pertains solely to counting
toward DBE goals the participation of firms that have already been
certified as DBEs. Except as provided in paragraph (a)(2) of this
section, you must not consider commercially useful function issues in
any way in making decisions about whether to certify a firm as a DBE.
(2) You may consider, in making certification decisions, whether a
firm has exhibited a pattern of conduct indicating its involvement in
attempts to evade or subvert the intent or requirements of the DBE
program.
(b) You must evaluate the eligibility of a firm on the basis of
present circumstances. You must not refuse to certify a firm based
solely on historical information indicating a lack of ownership or
control of the firm by socially and economically disadvantaged
individuals at some time in the past, if the firm currently meets the
ownership and control standards of this part. Nor must you refuse to
certify a firm solely on the basis that it is a newly formed firm.
(c) DBE firms and firms seeking DBE certification shall cooperate
fully with your requests (and DOT requests) for information relevant to
the certification process. Failure or refusal to provide such
information is a ground for a denial or removal of certification.
[[Page 5140]]
(d) Only firms organized for profit may be eligible DBEs. Not-for-
profit organizations, even though controlled by socially and
economically disadvantaged individuals, are not eligible to be
certified as DBEs.
(e) An eligible DBE firm must be owned by individuals who are
socially and economically disadvantaged. Except as provided in this
paragraph, a firm that is not owned by such individuals, but instead is
owned by another firm--even a DBE firm--cannot be an eligible DBE.
(1) If socially and economically disadvantaged individuals own and
control a firm through a parent or holding company, established for
tax, capitalization or other purposes consistent with industry
practice, and the parent or holding company in turn owns and controls
an operating subsidiary, you may certify the subsidiary if it otherwise
meets all requirements of this subpart. In this situation, the
individual owners and controllers of the parent or holding company are
deemed to control the subsidiary through the parent or holding company.
(2) You may certify such a subsidiary only if there is cumulatively
51 percent ownership of the subsidiary by socially and economically
disadvantaged individuals. The following examples illustrate how this
cumulative ownership provision works:
Example 1: Socially and economically disadvantaged individuals
own 100 percent of a holding company, which has a wholly-owned
subsidiary. The subsidiary may be certified, if it meets all other
requirements.
Example 2: Disadvantaged individuals own 100 percent of the
holding company, which owns 51 percent of a subsidiary. The
subsidiary may be certified, if all other requirements are met.
Example 3: Disadvantaged individuals own 80 percent of the
holding company, which in turn owns 70 percent of a subsidiary. In
this case, the cumulative ownership of the subsidiary by
disadvantaged individuals is 56 percent (80 percent of the 70
percent). This is more than 51 percent, so you may certify the
subsidiary, if all other requirements are met.
Example 4: Same as Example 2 or 3, but someone other than the
socially and economically disadvantaged owners of the parent or
holding company controls the subsidiary. Even though the subsidiary
is owned by disadvantaged individuals, through the holding or parent
company, you cannot certify it because it fails to meet control
requirements.
Example 5: Disadvantaged individuals own 60 percent of the
holding company, which in turn owns 51 percent of a subsidiary. In
this case, the cumulative ownership of the subsidiary by
disadvantaged individuals is about 31 percent. This is less than 51
percent, so you cannot certify the subsidiary.
Example 6: The holding company, in addition to the subsidiary
seeking certification, owns several other companies. The combined
gross receipts of the holding companies and its subsidiaries are
greater than the size standard for the subsidiary seeking
certification and/or the gross receipts cap of Sec. 26.65(b). Under
the rules concerning affiliation, the subsidiary fails to meet the
size standard and cannot be certified.
(f) Recognition of a business as a separate entity for tax or
corporate purposes is not necessarily sufficient to demonstrate that a
firm is an independent business, owned and controlled by socially and
economically disadvantaged individuals.
(g) You must not require a DBE firm to be prequalified as a
condition for certification unless the recipient requires all firms
that participate in its contracts and subcontracts to be prequalified.
(h) A firm that is owned by an Indian tribe, Alaska Native
Corporation, or Native Hawaiian organization as an entity, rather than
by Indians, Alaska Natives, or Native Hawaiians as individuals, may be
eligible for certification. Such a firm must meet the size standards of
Sec. 26.65. Such a firm must be controlled by socially and economically
disadvantaged individuals, as provided in Sec. 26.71.
Subpart E--Certification Procedures
Sec. 26.81 What are the requirements for Unified Certification
Programs?
(a) You and all other DOT recipients in your state must participate
in a Unified Certification Program (UCP).
(1) Within three years of March 4, 1999, you and the other
recipients in your state must sign an agreement establishing the UCP
for that state and submit the agreement to the Secretary for approval.
The Secretary may, on the basis of extenuating circumstances shown by
the recipients in the state, extend this deadline for no more than one
additional year.
(2) The agreement must provide for the establishment of a UCP
meeting all the requirements of this section. The agreement must
specify that the UCP will follow all certification procedures and
standards of this part, on the same basis as recipients; that the UCP
shall cooperate fully with oversight, review, and monitoring activities
of DOT and its operating administrations; and that the UCP shall
implement DOT directives and guidance concerning certification matters.
The agreement shall also commit recipients to ensuring that the UCP has
sufficient resources and expertise to carry out the requirements of
this part. The agreement shall include an implementation schedule
ensuring that the UCP is fully operational no later than 18 months
following the approval of the agreement by the Secretary.
(3) Subject to approval by the Secretary, the UCP in each state may
take any form acceptable to the recipients in that state.
(4) The Secretary shall review the UCP and approve it, disapprove
it, or remand it to the recipients in the state for revisions. A
complete agreement which is not disapproved or remanded within 180 days
of its receipt is deemed to be accepted.
(5) If you and the other recipients in your state fail to meet the
deadlines set forth in this paragraph (a), you shall have the
opportunity to make an explanation to the Secretary why a deadline
could not be met and why meeting the deadline was beyond your control.
If you fail to make such an explanation, or the explanation does not
justify the failure to meet the deadline, the Secretary shall direct
you to complete the required action by a date certain. If you and the
other recipients fail to carry out this direction in a timely manner,
you are collectively in noncompliance with this part.
(b) The UCP shall make all certification decisions on behalf of all
DOT recipients in the state with respect to participation in the DOT
DBE Program.
(1) Certification decisions by the UCP shall be binding on all DOT
recipients within the state.
(2) The UCP shall provide ``one-stop shopping'' to applicants for
certification, such that an applicant is required to apply only once
for a DBE certification that will be honored by all recipients in the
state.
(3) All obligations of recipients with respect to certification and
nondiscrimination must be carried out by UCPs, and recipients may use
only UCPs that comply with the certification and nondiscrimination
requirements of this part.
(c) All certifications by UCPs shall be pre-certifications; i.e.,
certifications that have been made final before the due date for bids
or offers on a contract on which a firm seeks to participate as a DBE.
(d) A UCP is not required to process an application for
certification from a firm having its principal place of business
outside the state if the firm is not certified by the UCP in the state
in which it maintains its principal place of business. The ``home
state'' UCP shall share its information and documents concerning the
firm with other UCPs that are considering the firm's application.
[[Page 5141]]
(e) Subject to DOT approval as provided in this section, the
recipients in two or more states may form a regional UCP. UCPs may also
enter into written reciprocity agreements with other UCPs. Such an
agreement shall outline the specific responsibilities of each
participant. A UCP may accept the certification of any other UCP or DOT
recipient.
(f) Pending the establishment of UCPs meeting the requirements of
this section, you may enter into agreements with other recipients, on a
regional or inter-jurisdictional basis, to perform certification
functions required by this part. You may also grant reciprocity to
other recipient's certification decisions.
(g) Each UCP shall maintain a unified DBE directory containing, for
all firms certified by the UCP (including those from other states
certified under the provisions of this section), the information
required by Sec. 26.31. The UCP shall make the directory available to
the public electronically, on the internet, as well as in print. The
UCP shall update the electronic version of the directory by including
additions, deletions, and other changes as soon as they are made.
(h) Except as otherwise specified in this section, all provisions
of this subpart and subpart D of this part pertaining to recipients
also apply to UCPs.
Sec. 26.83 What procedures do recipients follow in making
certification decisions?
(a) You must ensure that only firms certified as eligible DBEs
under this section participate as DBEs in your program.
(b) You must determine the eligibility of firms as DBEs consistent
with the standards of subpart D of this part. When a UCP is formed, the
UCP must meet all the requirements of subpart D of this part and this
subpart that recipients are required to meet.
(c) You must take all the following steps in determining whether a
DBE firm meets the standards of subpart D of this part:
(1) Perform an on-site visit to the offices of the firm. You must
interview the principal officers of the firm and review their resumes
and/or work histories. You must also perform an on-site visit to job
sites if there are such sites on which the firm is working at the time
of the eligibility investigation in your jurisdiction or local area.
You may rely upon the site visit report of any other recipient with
respect to a firm applying for certification;
(2) If the firm is a corporation, analyze the ownership of stock in
the firm;
(3) Analyze the bonding and financial capacity of the firm;
(4) Determine the work history of the firm, including contracts it
has received and work it has completed;
(5) Obtain a statement from the firm of the type of work it prefers
to perform as part of the DBE program and its preferred locations for
performing the work, if any;
(6) Obtain or compile a list of the equipment owned by or available
to the firm and the licenses the firm and its key personnel possess to
perform the work it seeks to do as part of the DBE program;
(7) Require potential DBEs to complete and submit an appropriate
application form.
(i) Uniform form. [Reserved]
(ii) You must make sure that the applicant attests to the accuracy
and truthfulness of the information on the application form. This shall
be done either in the form of an affidavit sworn to by the applicant
before a person who is authorized by state law to administer oaths or
in the form of an unsworn declaration executed under penalty of perjury
of the laws of the United States.
(iii) You must review all information on the form prior to making a
decision about the eligibility of the firm.
(d) When another recipient, in connection with its consideration of
the eligibility of a firm, makes a written request for certification
information you have obtained about that firm (e.g., including
application materials or the report of a site visit, if you have made
one to the firm), you must promptly make the information available to
the other recipient.
(e) When another DOT recipient has certified a firm, you have
discretion to take any of the following actions:
(1) Certify the firm in reliance on the certification decision of
the other recipient;
(2) Make an independent certification decision based on
documentation provided by the other recipient, augmented by any
additional information you require the applicant to provide; or
(3) Require the applicant to go through your application process
without regard to the action of the other recipient.
(f) Subject to the approval of the concerned operating
administration as part of your DBE program, you may impose a reasonable
application fee for certification. Fee waivers shall be made in
appropriate cases.
(g) You must safeguard from disclosure to unauthorized persons
information gathered as part of the certification process that may
reasonably be regarded as proprietary or other confidential business
information, consistent with applicable Federal, state, and local law.
(h) Once you have certified a DBE, it shall remain certified for a
period of at least three years unless and until its certification has
been removed through the procedures of Sec. 26.87. You may not require
DBEs to reapply for certification as a condition of continuing to
participate in the program during this three-year period, unless the
factual basis on which the certification was made changes.
(i) If you are a DBE, you must inform the recipient or UCP in
writing of any change in circumstances affecting your ability to meet
size, disadvantaged status, ownership, or control requirements of this
part or any material change in the information provided in your
application form.
(1) Changes in management responsibility among members of a limited
liability company are covered by this requirement.
(2) You must attach supporting documentation describing in detail
the nature of such changes.
(3) The notice must take the form of an affidavit sworn to by the
applicant before a person who is authorized by state law to administer
oaths or of an unsworn declaration executed under penalty of perjury of
the laws of the United States. You must provide the written
notification within 30 days of the occurrence of the change. If you
fail to make timely notification of such a change, you will be deemed
to have failed to cooperate under Sec. 26.109(c).
(j) If you are a DBE, you must provide to the recipient, every year
on the anniversary of the date of your certification, an affidavit
sworn to by the firm's owners before a person who is authorized by
state law to administer oaths or an unsworn declaration executed under
penalty of perjury of the laws of the United States. This affidavit
must affirm that there have been no changes in the firm's circumstances
affecting its ability to meet size, disadvantaged status, ownership, or
control requirements of this part or any material changes in the
information provided in its application form, except for changes about
which you have notified the recipient under paragraph (i) of this
section. The affidavit shall specifically affirm that your firm
continues to meet SBA business size criteria and the overall gross
receipts cap of this part, documenting this affirmation with supporting
documentation of your firm's size and gross receipts. If you fail to
provide this affidavit in a timely manner, you will be
[[Page 5142]]
deemed to have failed to cooperate under Sec. 26.109(c).
(k) If you are a recipient, you must make decisions on applications
for certification within 90 days of receiving from the applicant firm
all information required under this part. You may extend this time
period once, for no more than an additional 60 days, upon written
notice to the firm, explaining fully and specifically the reasons for
the extension. You may establish a different time frame in your DBE
program, upon a showing that this time frame is not feasible, and
subject to the approval of the concerned operating administration. Your
failure to make a decision by the applicable deadline under this
paragraph is deemed a constructive denial of the application, on the
basis of which the firm may appeal to DOT under Sec. 26.89.
Sec. 26.85 What rules govern recipients' denials of initial requests
for certification?
(a) When you deny a request by a firm, which is not currently
certified with you, to be certified as a DBE, you must provide the firm
a written explanation of the reasons for the denial, specifically
referencing the evidence in the record that supports each reason for
the denial. All documents and other information on which the denial is
based must be made available to the applicant, on request.
(b) When a firm is denied certification, you must establish a time
period of no more than twelve months that must elapse before the firm
may reapply to the recipient for certification. You may provide, in
your DBE program, subject to approval by the concerned operating
administration, a shorter waiting period for reapplication. The time
period for reapplication begins to run on the date the explanation
required by paragraph (a) of this section is received by the firm.
(c) When you make an administratively final denial of certification
concerning a firm, the firm may appeal the denial to the Department
under Sec. 26.89.
Sec. 26.87 What procedures does a recipient use to remove a DBE's
eligibility?
(a) Ineligibility complaints. (1) Any person may file with you a
written complaint alleging that a currently-certified firm is
ineligible and specifying the alleged reasons why the firm is
ineligible. You are not required to accept a general allegation that a
firm is ineligible or an anonymous complaint. The complaint may include
any information or arguments supporting the complainant's assertion
that the firm is ineligible and should not continue to be certified.
Confidentiality of complainants' identities must be protected as
provided in Sec. 26.109(b).
(2) You must review your records concerning the firm, any material
provided by the firm and the complainant, and other available
information. You may request additional information from the firm or
conduct any other investigation that you deem necessary.
(3) If you determine, based on this review, that there is
reasonable cause to believe that the firm is ineligible, you must
provide written notice to the firm that you propose to find the firm
ineligible, setting forth the reasons for the proposed determination.
If you determine that such reasonable cause does not exist, you must
notify the complainant and the firm in writing of this determination
and the reasons for it. All statements of reasons for findings on the
issue of reasonable cause must specifically reference the evidence in
the record on which each reason is based.
(b) Recipient-initiated proceedings. If, based on notification by
the firm of a change in its circumstances or other information that
comes to your attention, you determine that there is reasonable cause
to believe that a currently certified firm is ineligible, you must
provide written notice to the firm that you propose to find the firm
ineligible, setting forth the reasons for the proposed determination.
The statement of reasons for the finding of reasonable cause must
specifically reference the evidence in the record on which each reason
is based.
(c) DOT directive to initiate proceeding. (1) If the concerned
operating administration determines that information in your
certification records, or other information available to the concerned
operating administration, provides reasonable cause to believe that a
firm you certified does not meet the eligibility criteria of this part,
the concerned operating administration may direct you to initiate a
proceeding to remove the firm's certification.
(2) The concerned operating administration must provide you and the
firm a notice setting forth the reasons for the directive, including
any relevant documentation or other information.
(3) You must immediately commence and prosecute a proceeding to
remove eligibility as provided by paragraph (b) of this section.
(d) Hearing. When you notify a firm that there is reasonable cause
to remove its eligibility, as provided in paragraph (a), (b), or (c) of
this section, you must give the firm an opportunity for an informal
hearing, at which the firm may respond to the reasons for the proposal
to remove its eligibility in person and provide information and
arguments concerning why it should remain certified.
(1) In such a proceeding, you bear the burden of proving, by a
preponderance of the evidence, that the firm does not meet the
certification standards of this part.
(2) You must maintain a complete record of the hearing, by any
means acceptable under state law for the retention of a verbatim record
of an administrative hearing. If there is an appeal to DOT under
Sec. 26.89, you must provide a transcript of the hearing to DOT and, on
request, to the firm. You must retain the original record of the
hearing. You may charge the firm only for the cost of copying the
record.
(3) The firm may elect to present information and arguments in
writing, without going to a hearing. In such a situation, you bear the
same burden of proving, by a preponderance of the evidence, that the
firm does not meet the certification standards, as you would during a
hearing.
(e) Separation of functions. You must ensure that the decision in a
proceeding to remove a firm's eligibility is made by an office and
personnel that did not take part in actions leading to or seeking to
implement the proposal to remove the firm's eligibility and are not
subject, with respect to the matter, to direction from the office or
personnel who did take part in these actions.
(1) Your method of implementing this requirement must be made part
of your DBE program.
(2) The decisionmaker must be an individual who is knowledgeable
about the certification requirements of your DBE program and this part.
(3) Before a UCP is operational in its state, a small airport or
small transit authority (i.e., an airport or transit authority serving
an area with less than 250,000 population) is required to meet this
requirement only to the extent feasible.
(f) Grounds for decision. You must not base a decision to remove
eligibility on a reinterpretation or changed opinion of information
available to the recipient at the time of its certification of the
firm. You may base such a decision only on one or more of the
following:
(1) Changes in the firm's circumstances since the certification of
the firm by the recipient that render the firm unable to meet the
eligibility standards of this part;
[[Page 5143]]
(2) Information or evidence not available to you at the time the
firm was certified;
(3) Information that was concealed or misrepresented by the firm in
previous certification actions by a recipient;
(4) A change in the certification standards or requirements of the
Department since you certified the firm; or
(5) A documented finding that your determination to certify the
firm was factually erroneous.
(g) Notice of decision. Following your decision, you must provide
the firm written notice of the decision and the reasons for it,
including specific references to the evidence in the record that
supports each reason for the decision. The notice must inform the firm
of the consequences of your decision and of the availability of an
appeal to the Department of Transportation under Sec. 26.89. You must
send copies of the notice to the complainant in an ineligibility
complaint or the concerned operating administration that had directed
you to initiate the proceeding.
(h) Status of firm during proceeding. (1) A firm remains an
eligible DBE during the pendancy of your proceeding to remove its
eligibility.
(2) The firm does not become ineligible until the issuance of the
notice provided for in paragraph (g) of this section.
(i) Effects of removal of eligibility. When you remove a firm's
eligibility, you must take the following action:
(1) When a prime contractor has made a commitment to using the
ineligible firm, or you have made a commitment to using a DBE prime
contractor, but a subcontract or contract has not been executed before
you issue the decertification notice provided for in paragraph (g) of
this section, the ineligible firm does not count toward the contract
goal or overall goal. You must direct the prime contractor to meet the
contract goal with an eligible DBE firm or demonstrate to you that it
has made a good faith effort to do so.
(2) If a prime contractor has executed a subcontract with the firm
before you have notified the firm of its ineligibility, the prime
contractor may continue to use the firm on the contract and may
continue to receive credit toward its DBE goal for the firm's work. In
this case, or in a case where you have let a prime contract to the DBE
that was later ruled ineligible, the portion of the ineligible firm's
performance of the contract remaining after you issued the notice of
its ineligibility shall not count toward your overall goal, but may
count toward the contract goal.
(3) Exception: If the DBE's ineligibility is caused solely by its
having exceeded the size standard during the performance of the
contract, you may continue to count its participation on that contract
toward overall and contract goals.
(j) Availability of appeal. When you make an administratively final
removal of a firm's eligibility under this section, the firm may appeal
the removal to the Department under Sec. 26.89.
Sec. 26.89 What is the process for certification appeals to the
Department of Transportation?
(a)(1) If you are a firm which is denied certification or whose
eligibility is removed by a recipient, you may make an administrative
appeal to the Department.
(2) If you are a complainant in an ineligibility complaint to a
recipient (including the concerned operating administration in the
circumstances provided in Sec. 26.87(c)), you may appeal to the
Department if the recipient does not find reasonable cause to propose
removing the firm's eligibility or, following a removal of eligibility
proceeding, determines that the firm is eligible.
(3) Send appeals to the following address: Department of
Transportation, Office of Civil Rights, 400 7th Street, SW, Room 2401,
Washington, DC 20590.
(b) Pending the Department's decision in the matter, the
recipient's decision remains in effect. The Department does not stay
the effect of the recipient's decision while it is considering an
appeal.
(c) If you want to file an appeal, you must send a letter to the
Department within 90 days of the date of the recipient's final
decision, including information and arguments concerning why the
recipient's decision should be reversed. The Department may accept an
appeal filed later than 90 days after the date of the decision if the
Department determines that there was good cause for the late filing of
the appeal.
(1) If you are an appellant who is a firm which has been denied
certification, whose certification has been removed, whose owner is
determined not to be a member of a designated disadvantaged group, or
concerning whose owner the presumption of disadvantage has been
rebutted, your letter must state the name and address of any other
recipient which currently certifies the firm, which has rejected an
application for certification from the firm or removed the firm's
eligibility within one year prior to the date of the appeal, or before
which an application for certification or a removal of eligibility is
pending. Failure to provide this information may be deemed a failure to
cooperate under Sec. 26.109(c).
(2) If you are an appellant other than one described in paragraph
(c)(1) of this section, the Department will request, and the firm whose
certification has been questioned shall promptly provide, the
information called for in paragraph (c)(1) of this section. Failure to
provide this information may be deemed a failure to cooperate under
Sec. 26.109(c).
(d) When it receives an appeal, the Department requests a copy of
the recipient's complete administrative record in the matter. If you
are the recipient, you must provide the administrative record,
including a hearing transcript, within 20 days of the Department's
request. The Department may extend this time period on the basis of a
recipient's showing of good cause. To facilitate the Department's
review of a recipient's decision, you must ensure that such
administrative records are well organized, indexed, and paginated.
Records that do not comport with these requirements are not acceptable
and will be returned to you to be corrected immediately. If an appeal
is brought concerning one recipient's certification decision concerning
a firm, and that recipient relied on the decision and/or administrative
record of another recipient, this requirement applies to both
recipients involved.
(e) The Department makes its decision based solely on the entire
administrative record. The Department does not make a de novo review of
the matter and does not conduct a hearing. The Department may
supplement the administrative record by adding relevant information
made available by the DOT Office of Inspector General; Federal, state,
or local law enforcement authorities; officials of a DOT operating
administration or other appropriate DOT office; a recipient; or a firm
or other private party.
(f) As a recipient, when you provide supplementary information to
the Department, you shall also make this information available to the
firm and any third-party complainant involved, consistent with Federal
or applicable state laws concerning freedom of information and privacy.
The Department makes available, on request by the firm and any third-
party complainant involved, any supplementary information it receives
from any source.
(1) The Department affirms your decision unless it determines,
based on the entire administrative record, that your decision is
unsupported by
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substantial evidence or inconsistent with the substantive or procedural
provisions of this part concerning certification.
(2) If the Department determines, after reviewing the entire
administrative record, that your decision was unsupported by
substantial evidence or inconsistent with the substantive or procedural
provisions of this part concerning certification, the Department
reverses your decision and directs you to certify the firm or remove
its eligibility, as appropriate. You must take the action directed by
the Department's decision immediately upon receiving written notice of
it.
(3) The Department is not required to reverse your decision if the
Department determines that a procedural error did not result in
fundamental unfairness to the appellant or substantially prejudice the
opportunity of the appellant to present its case.
(4) If it appears that the record is incomplete or unclear with
respect to matters likely to have a significant impact on the outcome
of the case, the Department may remand the record to you with
instructions seeking clarification or augmentation of the record before
making a finding. The Department may also remand a case to you for
further proceedings consistent with Department instructions concerning
the proper application of the provisions of this part.
(5) The Department does not uphold your decision based on grounds
not specified in your decision.
(6) The Department's decision is based on the status and
circumstances of the firm as of the date of the decision being
appealed.
(7) The Department provides written notice of its decision to you,
the firm, and the complainant in an ineligibility complaint. A copy of
the notice is also sent to any other recipient whose administrative
record or decision has been involved in the proceeding (see paragraph
(d) of this section). The notice includes the reasons for the
Department's decision, including specific references to the evidence in
the record that supports each reason for the decision.
(8) The Department's policy is to make its decision within 180 days
of receiving the complete administrative record. If the Department does
not make its decision within this period, the Department provides
written notice to concerned parties, including a statement of the
reason for the delay and a date by which the appeal decision will be
made.
(g) All decisions under this section are administratively final,
and are not subject to petitions for reconsideration.
Sec. 26.91 What actions do recipients take following DOT certification
appeal decisions?
(a) If you are the recipient from whose action an appeal under
Sec. 26.89 is taken, the decision is binding. It is not binding on
other recipients.
(b) If you are a recipient to which a DOT determination under
Sec. 26.89 is applicable, you must take the following action:
(1) If the Department determines that you erroneously certified a
firm, you must remove the firm's eligibility on receipt of the
determination, without further proceedings on your part. Effective on
the date of your receipt of the Department's determination, the
consequences of a removal of eligibility set forth in Sec. 26.87(i)
take effect.
(2) If the Department determines that you erroneously failed to
find reasonable cause to remove the firm's eligibility, you must
expeditiously commence a proceeding to determine whether the firm's
eligibility should be removed, as provided in Sec. 26.87.
(3) If the Department determines that you erroneously declined to
certify or removed the eligibility of the firm, you must certify the
firm, effective on the date of your receipt of the written notice of
Department's determination.
(4) If the Department determines that you erroneously determined
that the presumption of social and economic disadvantage either should
or should not be deemed rebutted, you must take appropriate corrective
action as determined by the Department.
(5) If the Department affirms your determination, no further action
is necessary.
(c) Where DOT has upheld your denial of certification to or removal
of eligibility from a firm, or directed the removal of a firm's
eligibility, other recipients with whom the firm is certified may
commence a proceeding to remove the firm's eligibility under
Sec. 26.87. Such recipients must not remove the firm's eligibility
absent such a proceeding. Where DOT has reversed your denial of
certification to or removal of eligibility from a firm, other
recipients must take the DOT action into account in any certification
action involving the firm. However, other recipients are not required
to certify the firm based on the DOT decision.
Subpart F--Compliance and Enforcement
Sec. 26.101 What compliance procedures apply to recipients?
(a) If you fail to comply with any requirement of this part, you
may be subject to formal enforcement action under Sec. 26.103 or
Sec. 26.105 or appropriate program sanctions by the concerned operating
administration, such as the suspension or termination of Federal funds,
or refusal to approve projects, grants or contracts until deficiencies
are remedied. Program sanctions may include, in the case of the FHWA
program, actions provided for under 23 CFR 1.36; in the case of the FAA
program, actions consistent with 49 U.S.C. 47106(d), 47111(d), and
47122; and in the case of the FTA program, any actions permitted under
49 U.S.C. chapter 53 or applicable FTA program requirements.
(b) As provided in statute, you will not be subject to compliance
actions or sanctions for failing to carry out any requirement of this
part because you have been prevented from complying because a Federal
court has issued a final order in which the court found that the
requirement is unconstitutional.
Sec. 26.103 What enforcement actions apply in FHWA and FTA programs?
The provisions of this section apply to enforcement actions under
FHWA and FTA programs:
(a) Noncompliance complaints. Any person who believes that a
recipient has failed to comply with its obligations under this part may
file a written complaint with the concerned operating administration's
Office of Civil Rights. If you want to file a complaint, you must do so
no later than 180 days after the date of the alleged violation or the
date on which you learned of a continuing course of conduct in
violation of this part. In response to your written request, the Office
of Civil Rights may extend the time for filing in the interest of
justice, specifying in writing the reason for so doing. The Office of
Civil Rights may protect the confidentiality of your identity as
provided in Sec. 26.109(b). Complaints under this part are limited to
allegations of violation of the provisions of this part.
(b) Compliance reviews. The concerned operating administration may
review the recipient's compliance with this part at any time, including
reviews of paperwork and on-site reviews, as appropriate. The Office of
Civil Rights may direct the operating administration to initiate a
compliance review based on complaints received.
(c) Reasonable cause notice. If it appears, from the investigation
of a complaint or the results of a compliance review, that you, as a
recipient, are in noncompliance with this part, the appropriate DOT
office promptly sends you, return receipt requested, a written notice
advising you that there is reasonable cause to find you in
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noncompliance. The notice states the reasons for this finding and
directs you to reply within 30 days concerning whether you wish to
begin conciliation.
(d) Conciliation. (1) If you request conciliation, the appropriate
DOT office shall pursue conciliation for at least 30, but not more than
120, days from the date of your request. The appropriate DOT office may
extend the conciliation period for up to 30 days for good cause,
consistent with applicable statutes.
(2) If you and the appropriate DOT office sign a conciliation
agreement, then the matter is regarded as closed and you are regarded
as being in compliance. The conciliation agreement sets forth the
measures you have taken or will take to ensure compliance. While a
conciliation agreement is in effect, you remain eligible for FHWA or
FTA financial assistance.
(3) The concerned operating administration shall monitor your
implementation of the conciliation agreement and ensure that its terms
are complied with. If you fail to carry out the terms of a conciliation
agreement, you are in noncompliance.
(4) If you do not request conciliation, or a conciliation agreement
is not signed within the time provided in paragraph (d)(1) of this
section, then enforcement proceedings begin.
(e) Enforcement actions. (1) Enforcement actions are taken as
provided in this subpart.
(2) Applicable findings in enforcement proceedings are binding on
all DOT offices.
Sec. 26.105 What enforcement actions apply in FAA Programs?
(a) Compliance with all requirements of this part by airport
sponsors and other recipients of FAA financial assistance is enforced
through the procedures of Title 49 of the United States Code, including
49 U.S.C. 47106(d), 47111(d), and 47122, and regulations implementing
them.
(b) The provisions of Sec. 26.103(b) and this section apply to
enforcement actions in FAA programs.
(c) Any person who knows of a violation of this part by a recipient
of FAA funds may file a complaint under 14 CFR part 16 with the Federal
Aviation Administration Office of Chief Counsel.
Sec. 26.107 What enforcement actions apply to firms participating in
the DBE program?
(a) If you are a firm that does not meet the eligibility criteria
of subpart D of this part and that attempts to participate in a DOT-
assisted program as a DBE on the basis of false, fraudulent, or
deceitful statements or representations or under circumstances
indicating a serious lack of business integrity or honesty, the
Department may initiate suspension or debarment proceedings against you
under 49 CFR part 29.
(b) If you are a firm that, in order to meet DBE contract goals or
other DBE program requirements, uses or attempts to use, on the basis
of false, fraudulent or deceitful statements or representations or
under circumstances indicating a serious lack of business integrity or
honesty, another firm that does not meet the eligibility criteria of
subpart D of this part, the Department may initiate suspension or
debarment proceedings against you under 49 CFR part 29.
(c) In a suspension or debarment proceeding brought under paragraph
(a) or (b) of this section, the concerned operating administration may
consider the fact that a purported DBE has been certified by a
recipient. Such certification does not preclude the Department from
determining that the purported DBE, or another firm that has used or
attempted to use it to meet DBE goals, should be suspended or debarred.
(d) The Department may take enforcement action under 49 CFR Part
31, Program Fraud and Civil Remedies, against any participant in the
DBE program whose conduct is subject to such action under 49 CFR part
31.
(e) The Department may refer to the Department of Justice, for
prosecution under 18 U.S.C. 1001 or other applicable provisions of law,
any person who makes a false or fraudulent statement in connection with
participation of a DBE in any DOT-assisted program or otherwise
violates applicable Federal statutes.
Sec. 26.109 What are the rules governing information, confidentiality,
cooperation, and intimidation or retaliation?
(a) Availability of records. (1) In responding to requests for
information concerning any aspect of the DBE program, the Department
complies with provisions of the Federal Freedom of Information and
Privacy Acts (5 U.S.C. 552 and 552a). The Department may make available
to the public any information concerning the DBE program release of
which is not prohibited by Federal law.
(2) If you are a recipient, you shall safeguard from disclosure to
unauthorized persons information that may reasonably be considered as
confidential business information, consistent with Federal, state, and
local law.
(b) Confidentiality of information on complainants. Notwithstanding
the provisions of paragraph (a) of this section, the identity of
complainants shall be kept confidential, at their election. If such
confidentiality will hinder the investigation, proceeding or hearing,
or result in a denial of appropriate administrative due process to
other parties, the complainant must be advised for the purpose of
waiving the privilege. Complainants are advised that, in some
circumstances, failure to waive the privilege may result in the closure
of the investigation or dismissal of the proceeding or hearing. FAA
follows the procedures of 14 CFR part 16 with respect to
confidentiality of information in complaints.
(c) Cooperation. All participants in the Department's DBE program
(including, but not limited to, recipients, DBE firms and applicants
for DBE certification, complainants and appellants, and contractors
using DBE firms to meet contract goals) are required to cooperate fully
and promptly with DOT and recipient compliance reviews, certification
reviews, investigations, and other requests for information. Failure to
do so shall be a ground for appropriate action against the party
involved (e.g., with respect to recipients, a finding of noncompliance;
with respect to DBE firms, denial of certification or removal of
eligibility and/or suspension and debarment; with respect to a
complainant or appellant, dismissal of the complaint or appeal; with
respect to a contractor which uses DBE firms to meet goals, findings of
non-responsibility for future contracts and/or suspension and
debarment).
(d) Intimidation and retaliation. If you are a recipient,
contractor, or any other participant in the program, you must not
intimidate, threaten, coerce, or discriminate against any individual or
firm for the purpose of interfering with any right or privilege secured
by this part or because the individual or firm has made a complaint,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this part. If you violate this
prohibition, you are in noncompliance with this part.
Appendix A to Part 26--Guidance Concerning Good Faith Efforts
I. When, as a recipient, you establish a contract goal on a DOT-
assisted contract, a bidder must, in order to be responsible and/or
responsive, make good faith efforts to meet the goal. The bidder can
meet this requirement in either of two ways. First, the bidder can
meet the goal, documenting commitments for participation by DBE
firms sufficient for this purpose. Second, even if it doesn't meet
the goal, the bidder can document adequate good faith efforts. This
means that the bidder must show that it took
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all necessary and reasonable steps to achieve a DBE goal or other
requirement of this part which, by their scope, intensity, and
appropriateness to the objective, could reasonably be expected to
obtain sufficient DBE participation, even if they were not fully
successful.
II. In any situation in which you have established a contract
goal, part 26 requires you to use the good faith efforts mechanism
of this part. As a recipient, it is up to you to make a fair and
reasonable judgment whether a bidder that did not meet the goal made
adequate good faith efforts. It is important for you to consider the
quality, quantity, and intensity of the different kinds of efforts
that the bidder has made. The efforts employed by the bidder should
be those that one could reasonably expect a bidder to take if the
bidder were actively and aggressively trying to obtain DBE
participation sufficient to meet the DBE contract goal. Mere pro
forma efforts are not good faith efforts to meet the DBE contract
requirements. We emphasize, however, that your determination
concerning the sufficiency of the firm's good faith efforts is a
judgment call: meeting quantitative formulas is not required.
III. The Department also strongly cautions you against requiring
that a bidder meet a contract goal (i.e., obtain a specified amount
of DBE participation) in order to be awarded a contract, even though
the bidder makes an adequate good faith efforts showing. This rule
specifically prohibits you from ignoring bona fide good faith
efforts.
IV. The following is a list of types of actions which you should
consider as part of the bidder's good faith efforts to obtain DBE
participation. It is not intended to be a mandatory checklist, nor
is it intended to be exclusive or exhaustive. Other factors or types
of efforts may be relevant in appropriate cases.
A. Soliciting through all reasonable and available means (e.g.
attendance at pre-bid meetings, advertising and/or written notices)
the interest of all certified DBEs who have the capability to
perform the work of the contract. The bidder must solicit this
interest within sufficient time to allow the DBEs to respond to the
solicitation. The bidder must determine with certainty if the DBEs
are interested by taking appropriate steps to follow up initial
solicitations.
B. Selecting portions of the work to be performed by DBEs in
order to increase the likelihood that the DBE goals will be
achieved. This includes, where appropriate, breaking out contract
work items into economically feasible units to facilitate DBE
participation, even when the prime contractor might otherwise prefer
to perform these work items with its own forces.
C. Providing interested DBEs with adequate information about the
plans, specifications, and requirements of the contract in a timely
manner to assist them in responding to a solicitation.
D. (1) Negotiating in good faith with interested DBEs. It is the
bidder's responsibility to make a portion of the work available to
DBE subcontractors and suppliers and to select those portions of the
work or material needs consistent with the available DBE
subcontractors and suppliers, so as to facilitate DBE participation.
Evidence of such negotiation includes the names, addresses, and
telephone numbers of DBEs that were considered; a description of the
information provided regarding the plans and specifications for the
work selected for subcontracting; and evidence as to why additional
agreements could not be reached for DBEs to perform the work.
(2) A bidder using good business judgment would consider a
number of factors in negotiating with subcontractors, including DBE
subcontractors, and would take a firm's price and capabilities as
well as contract goals into consideration. However, the fact that
there may be some additional costs involved in finding and using
DBEs is not in itself sufficient reason for a bidder's failure to
meet the contract DBE goal, as long as such costs are reasonable.
Also, the ability or desire of a prime contractor to perform the
work of a contract with its own organization does not relieve the
bidder of the responsibility to make good faith efforts. Prime
contractors are not, however, required to accept higher quotes from
DBEs if the price difference is excessive or unreasonable.
E. Not rejecting DBEs as being unqualified without sound reasons
based on a thorough investigation of their capabilities. The
contractor's standing within its industry, membership in specific
groups, organizations, or associations and political or social
affiliations (for example union vs. non-union employee status) are
not legitimate causes for the rejection or non-solicitation of bids
in the contractor's efforts to meet the project goal.
F. Making efforts to assist interested DBEs in obtaining
bonding, lines of credit, or insurance as required by the recipient
or contractor.
G. Making efforts to assist interested DBEs in obtaining
necessary equipment, supplies, materials, or related assistance or
services.
H. Effectively using the services of available minority/women
community organizations; minority/women contractors' groups; local,
state, and Federal minority/women business assistance offices; and
other organizations as allowed on a case-by-case basis to provide
assistance in the recruitment and placement of DBEs.
V. In determining whether a bidder has made good faith efforts,
you may take into account the performance of other bidders in
meeting the contract. For example, when the apparent successful
bidder fails to meet the contract goal, but others meet it, you may
reasonably raise the question of whether, with additional reasonable
efforts, the apparent successful bidder could have met the goal. If
the apparent successful bidder fails to meet the goal, but meets or
exceeds the average DBE participation obtained by other bidders, you
may view this, in conjunction with other factors, as evidence of the
apparent successful bidder having made good faith efforts.
Appendix B to Part 26--Forms [Reserved]
Appendix C to Part 26--DBE Business Development Program Guidelines
The purpose of this program element is to further the
development of DBEs, including but not limited to assisting them to
move into non-traditional areas of work and/or compete in the
marketplace outside the DBE program, via the provision of training
and assistance from the recipient.
(A) Each firm that participates in a recipient's business
development program (BDP) program is subject to a program term
determined by the recipient. The term should consist of two stages;
a developmental stage and a transitional stage.
(B) In order for a firm to remain eligible for program
participation, it must continue to meet all eligibility criteria
contained in part 26.
(C) By no later than 6 months of program entry, the participant
should develop and submit to the recipient a comprehensive business
plan setting forth the participant's business targets, objectives
and goals. The participant will not be eligible for program benefits
until such business plan is submitted and approved by the recipient.
The approved business plan will constitute the participant's short
and long term goals and the strategy for developmental growth to the
point of economic viability in non-traditional areas of work and/or
work outside the DBE program.
(D) The business plan should contain at least the following:
(1) An analysis of market potential, competitive environment and
other business analyses estimating the program participant's
prospects for profitable operation during the term of program
participation and after graduation from the program.
(2) An analysis of the firm's strengths and weaknesses, with
particular attention paid to the means of correcting any financial,
managerial, technical, or labor conditions which could impede the
participant from receiving contracts other than those in traditional
areas of DBE participation.
(3) Specific targets, objectives, and goals for the business
development of the participant during the next two years, utilizing
the results of the analysis conducted pursuant to paragraphs (C) and
(D)(1) of this appendix;
(4) Estimates of contract awards from the DBE program and from
other sources which are needed to meet the objectives and goals for
the years covered by the business plan; and
(5) Such other information as the recipient may require.
(E) Each participant should annually review its currently
approved business plan with the recipient and modify the plan as may
be appropriate to account for any changes in the firm's structure
and redefined needs. The currently approved plan should be
considered the applicable plan for all program purposes until the
recipient approves in writing a modified plan. The recipient should
establish an anniversary date for review of the participant's
business plan and contract forecasts.
[[Page 5147]]
(F) Each participant should annually forecast in writing its
need for contract awards for the next program year and the
succeeding program year during the review of its business plan
conducted under paragraph (E) of this appendix. Such forecast should
be included in the participant's business plan. The forecast should
include:
(1) The aggregate dollar value of contracts to be sought under
the DBE program, reflecting compliance with the business plan;
(2) The aggregate dollar value of contracts to be sought in
areas other than traditional areas of DBE participation;
(3) The types of contract opportunities being sought, based on
the firm's primary line of business; and
(4) Such other information as may be requested by the recipient
to aid in providing effective business development assistance to the
participant.
(G) Program participation is divided into two stages; (1) a
developmental stage and (2) a transitional stage. The developmental
stage is designed to assist participants to overcome their social
and economic disadvantage by providing such assistance as may be
necessary and appropriate to enable them to access relevant markets
and strengthen their financial and managerial skills. The
transitional stage of program participation follows the
developmental stage and is designed to assist participants to
overcome, insofar as practical, their social and economic
disadvantage and to prepare the participant for leaving the program.
(H) The length of service in the program term should not be a
pre-set time frame for either the developmental or transitional
stages but should be figured on the number of years considered
necessary in normal progression of achieving the firm's established
goals and objectives. The setting of such time could be factored on
such items as, but not limited to, the number of contracts,
aggregate amount of the contract received, years in business, growth
potential, etc.
(I) Beginning in the first year of the transitional stage of
program participation, each participant should annually submit for
inclusion in its business plan a transition management plan
outlining specific steps to promote profitable business operations
in areas other than traditional areas of DBE participation after
graduation from the program. The transition management plan should
be submitted to the recipient at the same time other modifications
are submitted pursuant to the annual review under paragraph (E) of
this section. The plan should set forth the same information as
required under paragraph (F) of steps the participant will take to
continue its business development after the expiration of its
program term.
(J) When a participant is recognized as successfully completing
the program by substantially achieving the targets, objectives and
goals set forth in its program term, and has demonstrated the
ability to compete in the marketplace, its further participation
within the program may be determined by the recipient.
(K) In determining whether a concern has substantially achieved
the goals and objectives of its business plan, the following
factors, among others, should be considered by the recipient:
(1) Profitability;
(2) Sales, including improved ratio of non-traditional contracts
to traditional-type contracts;
(3) Net worth, financial ratios, working capital,
capitalization, access to credit and capital;
(4) Ability to obtain bonding;
(5) A positive comparison of the DBE's business and financial
profile with profiles of non-DBE businesses in the same area or
similar business category; and
(6) Good management capacity and capability.
(L) Upon determination by the recipient that the participant
should be graduated from the developmental program, the recipient
should notify the participant in writing of its intent to graduate
the firm in a letter of notification. The letter of notification
should set forth findings, based on the facts, for every material
issue relating to the basis of the program graduation with specific
reasons for each finding. The letter of notification should also
provide the participant 45 days from the date of service of the
letter to submit in writing information that would explain why the
proposed basis of graduation is not warranted.
(M) Participation of a DBE firm in the program may be
discontinued by the recipient prior to expiration of the firm's
program term for good cause due to the failure of the firm to engage
in business practices that will promote its competitiveness within a
reasonable period of time as evidenced by, among other indicators, a
pattern of inadequate performance or unjustified delinquent
performance. Also, the recipient can discontinue the participation
of a firm that does not actively pursue and bid on contracts, and a
firm that, without justification, regularly fails to respond to
solicitations in the type of work it is qualified for and in the
geographical areas where it has indicated availability under its
approved business plan. The recipient should take such action if
over a 2-year period a DBE firm exhibits such a pattern.
Appendix D to Part 26--Mentor-Protege Program Guidelines
(A) The purpose of this program element is to further the
development of DBEs, including but not limited to assisting them to
move into non-traditional areas of work and/or compete in the
marketplace outside the DBE program, via the provision of training
and assistance from other firms. To operate a mentor-protege
program, a recipient must obtain the approval of the concerned
operating administration.
(B)(1) Any mentor-protege relationship shall be based on a
written development plan, approved by the recipient, which clearly
sets forth the objectives of the parties and their respective roles,
the duration of the arrangement and the services and resources to be
provided by the mentor to the protege. The formal mentor-protege
agreement may set a fee schedule to cover the direct and indirect
cost for such services rendered by the mentor for specific training
and assistance to the protege through the life of the agreement.
Services provided by the mentor may be reimbursable under the FTA,
FHWA, and FAA programs.
(2) To be eligible for reimbursement, the mentor's services
provided and associated costs must be directly attributable and
properly allowable to specific individual contracts. The recipient
may establish a line item for the mentor to quote the portion of the
fee schedule expected to be provided during the life of the
contract. The amount claimed shall be verified by the recipient and
paid on an incremental basis representing the time the protege is
working on the contract. The total individual contract figures
accumulated over the life of the agreement shall not exceed the
amount stipulated in the original mentor/protege agreement.
(C) DBEs involved in a mentor-protege agreement must be
independent business entities which meet the requirements for
certification as defined in subpart D of this part. A protege firm
must be certified before it begins participation in a mentor-protege
arrangement. If the recipient chooses to recognize mentor/protege
agreements, it should establish formal general program guidelines.
These guidelines must be submitted to the operating administration
for approval prior to the recipient executing an individual
contractor/ subcontractor mentor-protege agreement.
Appendix E to Part 26--Individual Determinations of Social and Economic
Disadvantage
The following guidance is adapted, with minor modifications,
from SBA regulations concerning social and economic disadvantage
determinations (see 13 CFR 124.103(c) and 124.104).
Social Disadvantage
I. Socially disadvantaged individuals are those who have been
subjected to racial or ethnic prejudice or cultural bias within
American society because of their identities as members of groups
and without regard to their individual qualities. Social
disadvantage must stem from circumstances beyond their control.
Evidence of individual social disadvantage must include the
following elements:
(A) At least one objective distinguishing feature that has
contributed to social disadvantage, such as race, ethnic origin,
gender, disability, 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;
(B) Personal experiences of substantial and chronic social
disadvantage in American society, not in other countries; and
(C) Negative impact on entry into or advancement in the business
world because of the disadvantage. Recipients will consider any
relevant evidence in assessing this element. In every case, however,
recipients 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.
[[Page 5148]]
(1) Education. Recipients will consider such factors as denial
of equal access to institutions of higher education and vocational
training, exclusion from social and professional association with
students or teachers, denial of educational honors rightfully
earned, and social patterns or pressures which discouraged the
individual from pursuing a professional or business education.
(2) Employment. Recipients will consider such factors as unequal
treatment in hiring, promotions and other aspects of professional
advancement, pay and fringe benefits, and other terms and conditions
of employment; retaliatory or discriminatory behavior by an employer
or labor union; and social patterns or pressures which have
channeled the individual into non-professional or non-business
fields.
(3) Business history. The recipient will consider such factors
as unequal access to credit or capital, acquisition of credit or
capital under commercially unfavorable circumstances, unequal
treatment in opportunities for government contracts or other work,
unequal treatment by potential customers and business associates,
and exclusion from business or professional organizations.
II. With respect to paragraph I.(A) of this appendix, the
Department notes that people with disabilities have
disproportionately low incomes and high rates of unemployment. Many
physical and attitudinal barriers remain to their full participation
in education, employment, and business opportunities available to
the general public. The Americans with Disabilities Act (ADA) was
passed in recognition of the discrimination faced by people with
disabilities. It is plausible that many individuals with
disabilities--especially persons with severe disabilities (e.g.,
significant mobility, vision, or hearing impairments)--may be
socially and economically disadvantaged.
III. Under the laws concerning social and economic disadvantage,
people with disabilities are not a group presumed to be
disadvantaged. Nevertheless, recipients should look carefully at
individual showings of disadvantage by individuals with
disabilities, making a case-by-case judgment about whether such an
individual meets the criteria of this appendix. As public entities
subject to Title II of the ADA, recipients must also ensure their
DBE programs are accessible to individuals with disabilities. For
example, physical barriers or the lack of application and
information materials in accessible formats cannot be permitted to
thwart the access of potential applicants to the certification
process or other services made available to DBEs and applicants.
Economic Disadvantage
(A) General. 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.
(B) Submission of narrative and financial information.
(1) Each individual claiming economic disadvantage must describe
the conditions which are the basis for the claim in a narrative
statement, and must submit personal financial information.
(2) When married, an individual claiming economic disadvantage
also must submit separate financial information for his or her
spouse, unless the individual and the spouse are legally separated.
(C) Factors to be considered. In considering diminished capital
and credit opportunities, recipients will examine factors relating
to the personal financial condition of any individual claiming
disadvantaged status, including personal income for the past two
years (including bonuses and the value of company stock given in
lieu of cash), personal net worth, and the fair market value of all
assets, whether encumbered or not. Recipients will also consider the
financial condition of the applicant compared to the financial
profiles of small businesses in the same primary industry
classification, or, if not available, in similar lines of business,
which are not owned and controlled by socially and economically
disadvantaged individuals in evaluating the individual's access to
credit and capital. The financial profiles that recipients will
compare include total assets, net sales, pre-tax profit, sales/
working capital ratio, and net worth.
(D) Transfers within two years.
(1) Except as set forth in paragraph (D)(2) of this appendix,
recipients will attribute to an individual claiming disadvantaged
status any assets which that individual has transferred to an
immediate family member, or to a trust, a beneficiary of which is an
immediate family member, for less than fair market value, within two
years prior to a concern's application for participation in the DBE
program, unless the individual claiming disadvantaged status can
demonstrate that the transfer is to or on behalf of an immediate
family member for that individual's education, medical expenses, or
some other form of essential support.
(2) Recipients will not attribute to an individual claiming
disadvantaged status any assets transferred by that individual to an
immediate family member that are consistent with the customary
recognition of special occasions, such as birthdays, graduations,
anniversaries, and retirements.
(3) In determining an individual's access to capital and credit,
recipients may consider any assets that the individual transferred
within such two-year period described by paragraph (D)(1) of this
appendix that are not considered in evaluating the individual's
assets and net worth (e.g., transfers to charities).
[FR Doc. 99-1083 Filed 1-29-99; 11:00 am]
BILLING CODE 4910-62-P
