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62 the DBE program operates through the use of race-conscious tant because narrow tailoring also requires DBE goals be set contract goals for subcontracting. A subcontracting program on a contract-by-contract basis.195 For example, a new road requires subcontracting proof. In our view, disparity or avail- construction or a highway maintenance contract may have ability studies that ignore missing subcontract data are very different opportunities for DBE participation than an unlikely to withstand strict scrutiny. underground tunnel project. To set those goals, the agency Therefore, agencies must educate themselves before com- needs to have reliable estimates of DBE availability for all missioning a study regarding their own data limitations and detailed industry categories that may be involved in a project. ensure that the data collection method to be implemented State DOTs should require such detailed data be included and satisfactorily addressed the issue of missing subcontract data ensure that sufficient resources are allocated to the study to and that a realistic allocation of resources is included in the create it. study budget to address the issue. Methods for Collecting Subcontract Data Allow Subcontract Data in Detailed Industry Statistics Anticipation of Future Studies As illustrated by Table A1, without complete subcontract Compensating for missing subcontract data is one of the data it is not possible to carry out statistical analyses by detailed main factors affecting the cost of high-quality disparity and industry categories. For state DOTs, one of the most important availability studies. One of the most important ways to reduce uses of detailed industry statistics is to provide dollar-weighted costs of future studies is to systematically collect and main- estimates of DBE availability.192 tain complete subcontract data. As shown above in the sample contract in Table A1, far The most effective and least burdensome method is to more dollars were expected to be spent in NAICS 23621 than require prime contractors and consultants to submit, either in NAICS 23821 or 23811. Consequently, to set an overall as part of their bid packages or at some other point prior to DBE goal for this particular contract, the state DOT would the agency issuing a Notice to Proceed, a standardized form weight DBE availability in NAICS 23621 more heavily than listing all proposed first-tier subcontracts, both DBEs and availability in NAICS 28321 or 23811. Exactly how much weight to give each detailed industry availability estimate non-DBEs. This form should clearly identify the prime con- would be determined by the proportional distribution of dol- tract and prime contractor and should include, at a mini- lars across each relevant NAICS industry. mum, the following information: Another, simpler example appears in the U.S.DOT's DBE Program guidance: "if 90% of your contract dollars will be Full business name of the subcontractor; spent on heavy construction and 10% on trucking, you should Subcontractor street address, city, state, and zip code; weight your calculation of the relative availability of firms by Subcontractor telephone number; the same percentages."193 Subcontractor contact person and title; Despite some court rulings warning against the dangers of Anticipated dollar amount of the subcontract; Simpson's Paradox with respect to over-aggregation by indus- Short description of the services to be performed and/or try, a substantial share of studies still fail to employ detailed goods to be supplied; and industry weights. Of the 28 state DOTs that have performed or Race and gender of subcontractor ownership, if known. are currently performing a disparity or availability study, only three of the eight consultants involved used detailed industry Additionally, the prime contractor should be periodically data--i.e., three-digit NAICS/two-digit SIC or higher--to required during contract performance to certify that no mat- construct weighted availability estimates.194 erial changes have been made to the proposed roster of sub- Weighted DBE availability estimates are important because contractors or subcontract amounts.196 If change orders have they allow state DOTs to meet the requirement that their been issued to any subcontractors, if new subcontractors annual DBE goals be narrowly tailored to their specific con- have been added, or if original subcontractors have been tracting circumstances. Weighted estimates are further impor- dropped, then this should be noted and the pertinent details provided. At the final pay application, the prime contractor 192Detailed industry statistics are also important in calculations of utilization and disparity in disparity studies. 193U.S.DOT, OSDBU (n.d., Section II.F). 19549 C.F.R 26.51(d) and (e); see also Chapter Two, Review of Existing Studies, 194Two of these three consultants, however, could not be evaluated because their supra. studies are not yet complete and they have no other completed studies on record. 196 This could be done at each pay application or each quarter.