|
Home DBE ProgramDBE Final Rule
DBE Final Rule
Prev | Index | Next
Subpart B - Administrative Requirements for DBE Programs for Federally-Assisted Contracting
Question and Answer
(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 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.
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.
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.
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.
(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.
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.
(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.
(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.
(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 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.
Prev | Index | Next
|
US DOT DBE Contacts
