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OCR for page 58
58 Qualitative evidence from DBEs and non-DBEs concerning Keep the RFP simple. Ask for the proposers' best profes- experiences doing business or attempting to do business in sional judgment, supported by the case law, of what con- the relevant marketplace, including experiences of institu- stitutes a defensible study. tionalized discrimination and/or individual disparate treat- Do not commission a study unless sufficient funds are ment, gathered through surveys, personal interviews, and/ available to fund it properly. A poorly funded study will be or public hearings (i.e., "anecdotal evidence"); of little or no value in supporting a state DOT DBE Pro- Qualitative and/or quantitative analysis of the effectiveness gram and could, in fact, do actual harm.190 of race-neutral measures to address low DBE participation Do not separate the conduct of the study into "phases." in public contracting; and Many study approaches are integrated. An "availability" Review of existing policies and procedures related to DBE phase is not readily separable from a "disparity" phase, participation, with recommendations for changes/revisions as both share many common elements (building project designed to improve the effectiveness of the program and database, relevant market determination, etc.). Moreover, increase legal compliance. important types of statistical testing are done through re- gression analysis where disparities and their determining Additionally, both types of studies should be supervised by factors are assessed simultaneously. Asking for a "dispar- professional social scientists (e.g., economists and/or statisti- ity" phase and an "if there is a disparity, determine the cians) who can be qualified as expert trial witnesses under the causes of the disparity" phase therefore requires a separa- exacting standards of the Federal Rules of Evidence to testify tion that is not possible with regression analysis. DBE di- about the study's data, methods, and findings. rectors who used this approach strongly recommended against it because it just increased the time to engage the consultant and complete the study with no benefit to the Tips for a Successful DBE Disparity study process or product. or Availability Study RFP Process Allow at least 12 months for the study to be completed. Drafting the RFP Document Allow more time in the case of multi-agency studies. The most time-consuming component is usually the collection Immediately and directly involve state DOT legal counsel of adequate contract and subcontract data. Unless there is in all phases of the RFP process, from drafting the RFP to active litigation, quality is more important than speed. selecting the consultant. We recommend that state DOTs Do not mandate regular face-to-face meetings. They are consider placing the procurement and conduct of the costly and time consuming, and with the technologies avail- study under the supervision of a senior attorney in the legal able, usually unnecessary. Requiring such meetings will in- department. Not only will this ensure that critical legal crease the cost and the time required to perform a study. support is provided throughout the process but also the Put all required attachments in one place in the RFP and attorney-client privilege may attach to many communica- tions. A senior attorney is recommended because of the include a complete list of all attachments required in the complex and complicated nature of the legal and adminis- proposal. Make the current DBE Program (and any programs for trative issues involved. Develop a study team, whose members should be com- non-federal-aid contracts) available electronically. prised of the following agency functions: Provide a due date for questions, compile all questions and Law, answers, and email them to all who submitted questions. Purchasing and/or contract administration, To ensure that answers are provided in sufficient time to Public works/engineering or equivalent, address proposers' concerns, allow at least one week be- Finance/accounts payable or equivalent, tween the provision of answers and the proposal due date. Information technology, Include information in the RFP about the number of and M/W/DBE program administration, and dollar value of relevant agency contracts. Provide informa- Communications and/or external affairs. tion regarding the format and availability of the contract data. Include as much information as possible regarding This team may be responsible for evaluating proposals, as the number, dollar amounts, and types of contracts, as well well as overseeing the study process. Additional state DOT as the availability (hard copy, electronic, etc.) of the con- personnel may be included. We caution against including tract data for prime contractors and subcontractors. persons external to the agency, such as representatives of con- tractor groups or community organizations, because of the highly specialized nature of the study and the perception of 190 See W. H. Scott Construction Co., Inc. v. City of Jackson, Mississippi, 199 F.3d 206 possible bias or conflicts of interest. (5th Cir. 1999) (City was not free to ignore the results of its disparity study).

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59 If a DBE goal is set for the study, ensure that it reflects a re- Failure to disseminate the RFP will reduce the competition alistic assessment of the amount of work likely to be done and breadth of choices for the state DOT. by a local DBE that lacks direct study experience. Provide Establish the due date for proposals on a Wednesday, a list of relevant potential DBE subcontractors if the UCP Thursday, or Friday. Proposals will be submitted from Directory is not easily searchable. consultants all over the country. This necessitates the use We advise against limiting pages in the proposal. The of overnight delivery services. Because unforeseen cir- issues about study methods are complex and do not cumstances may prevent packages from being delivered lend themselves well to overly truncated presentations. overnight, prudence counsels that the proposal be shipped The state DOT will be served better by receiving more in- two business days before the due date. If the due date is a formation rather than less about the approach and the Monday or Tuesday, this can essentially eliminate three experts. days from the time the consultant has to work on prepar- Ask for and check consultant references. Contact agencies ing its best offer. for which studies were conducted that are not listed as Proposals should be due after 2:00 p.m. local time. This will references. lead to fewer problems with overnight delivery services. Request at least one sample study and have the state DOT Provide at least four weeks from the date of issuance for the legal counsel review it for legal sufficiency. response. Do not separate the process of procuring the study into Include face-to-face interviews as part of the evaluation phases. Do not first require a Statement of Qualifications process for finalists. Not only is the state DOT hiring a and then later require a Proposal. In every instance we re- study consultant but also potentially an expert witness for viewed that used this approach, the information requested litigation. Face-to-face interviews permit the state DOT of the bidders was, in general, the same in both documents. and its lawyers to evaluate the consultant's ability to ex- Requiring what amounts to double proposals is time con- plain the study data, methods, and findings and the team suming and costly. member's experience and demeanor for litigation. Proofread the RFP. Many questions and problems will be If you plan to conduct interviews, propose an anticipated eliminated with careful proofreading from the perspec- timeline in the RFP and do your best to stick to it. This will tive of a proposer, including incorrect information, such as help avoid scheduling difficulties later on. for the time frame for study and period for study perfor- If changes or amendments to RFP must be made within mance; unnecessary requirements, such as attachments and one week before the due date for proposals, then change information that are obviously for construction or engi- the due date of the RFP. Give proposers sufficient time to neering projects; and serious redundancy, such as requir- revise their submissions. ing the same information be provided in more than one Do not impose a mandatory pre-proposal meeting atten- place in the proposal. This will also reduce the state dance requirement. Written questions and answers are the DOT's burden of responding to questions and evaluating most effective way to address proposers' concerns. proposals. If state procurement and records laws permit, make evalu- ation documents available to bidders after the final selec- tion without filing Freedom of Information Act or similar Conducting the RFP Process requests. Doing this in a timely manner benefits the DOT Directly notify the relatively small pool of consultants that because material errors have been discovered regarding the performs disparity studies of the issuance of the RFP. It is evaluation and award process once the evaluation docu- not reasonable to expect consultants to register with every ments were made available to a bidder. Avoiding this type agency or search hundreds of public websites every day. of situation is in the state DOT's best interest.