Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter.
Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.
OCR for page R1
NATIONAL
NCHRP REPORT 644
COOPERATIVE
HIGHWAY
RESEARCH
PROGRAM
Guidelines for Conducting
a Disparity and Availability Study
for the Federal DBE Program
OCR for page R2
TRANSPORTATION RESEARCH BOARD 2009 EXECUTIVE COMMITTEE*
OFFICERS
CHAIR: Adib K. Kanafani, Cahill Professor of Civil Engineering, University of California, Berkeley
VICE CHAIR: Michael R. Morris, Director of Transportation, North Central Texas Council of Governments, Arlington
EXECUTIVE DIRECTOR: Robert E. Skinner, Jr., Transportation Research Board
MEMBERS
J. Barry Barker, Executive Director, Transit Authority of River City, Louisville, KY
Allen D. Biehler, Secretary, Pennsylvania DOT, Harrisburg
Larry L. Brown, Sr., Executive Director, Mississippi DOT, Jackson
Deborah H. Butler, Executive Vice President, Planning, and CIO, Norfolk Southern Corporation, Norfolk, VA
William A.V. Clark, Professor, Department of Geography, University of California, Los Angeles
David S. Ekern, Commissioner, Virginia DOT, Richmond
Nicholas J. Garber, Henry L. Kinnier Professor, Department of Civil Engineering, University of Virginia, Charlottesville
Jeffrey W. Hamiel, Executive Director, Metropolitan Airports Commission, Minneapolis, MN
Edward A. (Ned) Helme, President, Center for Clean Air Policy, Washington, DC
Randell H. Iwasaki, Director, California DOT, Sacramento
Susan Martinovich, Director, Nevada DOT, Carson City
Debra L. Miller, Secretary, Kansas DOT, Topeka
Neil J. Pedersen, Administrator, Maryland State Highway Administration, Baltimore
Pete K. Rahn, Director, Missouri DOT, Jefferson City
Sandra Rosenbloom, Professor of Planning, University of Arizona, Tucson
Tracy L. Rosser, Vice President, Regional General Manager, Wal-Mart Stores, Inc., Mandeville, LA
Rosa Clausell Rountree, CEOGeneral Manager, Transroute International Canada Services, Inc., Pitt Meadows, BC
Steven T. Scalzo, Chief Operating Officer, Marine Resources Group, Seattle, WA
Henry G. (Gerry) Schwartz, Jr., Chairman (retired), Jacobs/Sverdrup Civil, Inc., St. Louis, MO
C. Michael Walton, Ernest H. Cockrell Centennial Chair in Engineering, University of Texas, Austin
Linda S. Watson, CEO, LYNXCentral Florida Regional Transportation Authority, Orlando
Steve Williams, Chairman and CEO, Maverick Transportation, Inc., Little Rock, AR
EX OFFICIO MEMBERS
Thad Allen (Adm., U.S. Coast Guard), Commandant, U.S. Coast Guard, Washington, DC
Peter H. Appel, Administrator, Research and Innovative Technology Administration, U.S.DOT
J. Randolph Babbitt, Administrator, Federal Aviation Administration, U.S.DOT
Rebecca M. Brewster, President and COO, American Transportation Research Institute, Smyrna, GA
George Bugliarello, President Emeritus and University Professor, Polytechnic Institute of New York University, Brooklyn; Foreign Secretary,
National Academy of Engineering, Washington, DC
James E. Caponiti, Acting Deputy Administrator, Maritime Administration, U.S.DOT
Cynthia Douglass, Acting Deputy Administrator, Pipeline and Hazardous Materials Safety Administration, U.S.DOT
LeRoy Gishi, Chief, Division of Transportation, Bureau of Indian Affairs, U.S. Department of the Interior, Washington, DC
Edward R. Hamberger, President and CEO, Association of American Railroads, Washington, DC
John C. Horsley, Executive Director, American Association of State Highway and Transportation Officials, Washington, DC
Rose A. McMurry, Acting Deputy Administrator, Federal Motor Carrier Safety Administration, U.S.DOT
Ronald Medford, Acting Deputy Administrator, National Highway Traffic Safety Administration, U.S.DOT
Victor M. Mendez, Administrator, Federal Highway Administration, U.S.DOT
William W. Millar, President, American Public Transportation Association, Washington, DC
Peter M. Rogoff, Administrator, Federal Transit Administration, U.S.DOT
Joseph C. Szabo, Administrator, Federal Railroad Administration, U.S.DOT
Polly Trottenberg, Assistant Secretary for Transportation Policy, U.S.DOT
Robert L. Van Antwerp (Lt. Gen., U.S. Army), Chief of Engineers and Commanding General, U.S. Army Corps of Engineers, Washington, DC
*Membership as of October 2009.
OCR for page R3
NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM
NCHRP REPORT 644
Guidelines for Conducting
a Disparity and Availability Study
for the Federal DBE Program
Jon Wainwright
NERA ECONOMIC CONSULTING
Austin, TX
Colette Holt
COLETTE HOLT & ASSOCIATES
Chicago, IL
Subject Areas
Transportation Law
Research sponsored by the American Association of State Highway and Transportation Officials
in cooperation with the Federal Highway Administration
TRANSPORTATION RESEARCH BOARD
WASHINGTON, D.C.
2010
www.TRB.org
OCR for page R4
NATIONAL COOPERATIVE HIGHWAY NCHRP REPORT 644
RESEARCH PROGRAM
Systematic, well-designed research provides the most effective Project 20-76
approach to the solution of many problems facing highway ISSN 0077-5614
administrators and engineers. Often, highway problems are of local ISBN 978-0-309-11815-6
interest and can best be studied by highway departments individually Library of Congress Control Number 2009942701
or in cooperation with their state universities and others. However, the © 2010 National Academy of Sciences. All rights reserved.
accelerating growth of highway transportation develops increasingly
complex problems of wide interest to highway authorities. These
problems are best studied through a coordinated program of COPYRIGHT INFORMATION
cooperative research.
Authors herein are responsible for the authenticity of their materials and for obtaining
In recognition of these needs, the highway administrators of the written permissions from publishers or persons who own the copyright to any previously
American Association of State Highway and Transportation Officials published or copyrighted material used herein.
initiated in 1962 an objective national highway research program Cooperative Research Programs (CRP) grants permission to reproduce material in this
employing modern scientific techniques. This program is supported on publication for classroom and not-for-profit purposes. Permission is given with the
understanding that none of the material will be used to imply TRB, AASHTO, FAA, FHWA,
a continuing basis by funds from participating member states of the
FMCSA, FTA, or Transit Development Corporation endorsement of a particular product,
Association and it receives the full cooperation and support of the method, or practice. It is expected that those reproducing the material in this document for
Federal Highway Administration, United States Department of educational and not-for-profit uses will give appropriate acknowledgment of the source of
any reprinted or reproduced material. For other uses of the material, request permission
Transportation.
from CRP.
The Transportation Research Board of the National Academies was
requested by the Association to administer the research program
because of the Board's recognized objectivity and understanding of
NOTICE
modern research practices. The Board is uniquely suited for this
purpose as it maintains an extensive committee structure from which The project that is the subject of this report was a part of the National Cooperative Highway
Research Program conducted by the Transportation Research Board with the approval of
authorities on any highway transportation subject may be drawn; it the Governing Board of the National Research Council. Such approval reflects the
possesses avenues of communications and cooperation with federal, Governing Board's judgment that the program concerned is of national importance and
state and local governmental agencies, universities, and industry; its appropriate with respect to both the purposes and resources of the National Research
Council.
relationship to the National Research Council is an insurance of
The members of the technical committee selected to monitor this project and to review this
objectivity; it maintains a full-time research correlation staff of
report were chosen for recognized scholarly competence and with due consideration for the
specialists in highway transportation matters to bring the findings of balance of disciplines appropriate to the project. The opinions and conclusions expressed
research directly to those who are in a position to use them. or implied are those of the research agency that performed the research, and, while they have
been accepted as appropriate by the technical committee, they are not necessarily those of
The program is developed on the basis of research needs identified
the Transportation Research Board, the National Research Council, the American
by chief administrators of the highway and transportation departments Association of State Highway and Transportation Officials, or the Federal Highway
and by committees of AASHTO. Each year, specific areas of research Administration, U.S. Department of Transportation.
needs to be included in the program are proposed to the National Each report is reviewed and accepted for publication by the technical committee according
Research Council and the Board by the American Association of State to procedures established and monitored by the Transportation Research Board Executive
Committee and the Governing Board of the National Research Council.
Highway and Transportation Officials. Research projects to fulfill these
needs are defined by the Board, and qualified research agencies are The Transportation Research Board of the National Academies, the National Research
Council, the Federal Highway Administration, the American Association of State Highway
selected from those that have submitted proposals. Administration and and Transportation Officials, and the individual states participating in the National
surveillance of research contracts are the responsibilities of the National Cooperative Highway Research Program do not endorse products or manufacturers. Trade
Research Council and the Transportation Research Board. or manufacturers' names appear herein solely because they are considered essential to the
object of this report.
The needs for highway research are many, and the National
Cooperative Highway Research Program can make significant
contributions to the solution of highway transportation problems of
mutual concern to many responsible groups. The program, however, is
intended to complement rather than to substitute for or duplicate other
highway research programs.
Published reports of the
NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM
are available from:
Transportation Research Board
Business Office
500 Fifth Street, NW
Washington, DC 20001
and can be ordered through the Internet at:
http://www.national-academies.org/trb/bookstore
Printed in the United States of America
OCR for page R5
OCR for page R6
COOPERATIVE RESEARCH PROGRAMS
CRP STAFF FOR NCHRP REPORT 644
Christopher W. Jenks, Director, Cooperative Research Programs
Crawford F. Jencks, Deputy Director, Cooperative Research Programs
Christopher J. Hedges, Senior Program Officer
Eileen P. Delaney, Director of Publications
Hilary Freer, Senior Editor
NCHRP PROJECT 20-76 PANEL
Area of Special Projects
Sally A. Howard, Office of the Governor - Kansas, Topeka, KS (Chair)
Greg Diehl, Colorado DOT, Denver, CO
Jeffery W. Brown, Alabama DOT, Montgomery, AL
Olivia Fonseca, California DOT, Sacramento, CA
Mark G. Kelsey, City of Columbus, Columbus, OH
Robert J. Shea, Pennsylvania DOT, Harrisburg, PA
Lester Woods, Jr., Missouri DOT, Jefferson City, MO
Candace J. Groudine, FHWA Liaison
Martine A. Micozzi, TRB Liaison
AUTHOR ACKNOWLEDGMENTS
The research reported herein was performed under NCHRP Project 20-76. NERA Economic Consult-
ing was the contractor and Colette Holt & Associates was the subcontractor.
NERA Vice President Dr. Jon Wainwright was project director and co-Principal Investigator. Attorney
Colette Holt of Colette Holt & Associates was co-Principal Investigator. The other authors of this report
are Kim Stewart, M.S., Research Assistant at NERA, and J. Wesley Stewart, A.A., Research Assistant at
NERA. The work was performed under the general supervision of Dr. Wainwright and Attorney Holt.
OCR for page R7
FOREWORD
By Christopher J. Hedges
Staff Officer
Transportation Research Board
This report presents guidelines for state departments of transportation (DOTs) on how
to conduct effective and legally defensible disparity and availability studies to meet the
requirements of the Disadvantaged Business Enterprise program for federally funded proj-
ects. It includes guidance to assist DOTs in determining when and if a disparity or availabil-
ity study is recommended, a model scope of work that can be used in a request for propos-
als, and detailed recommendations on how to design and implement disparity and
availability studies. The report will serve as an invaluable resource for legal and contracting
staff in all state transportation agencies.
Since 1987, the U.S. DOT has required that grantees implement a Disadvantaged Busi-
ness Enterprise (DBE) program based on regulations found in 49 C.F.R Parts 23 and 26. The
most current regulations, contained at 49 C.F.R Part 26, provide the states with an annual
DBE goal-setting methodology. State DOTs must set DBE goals based on demonstrable evi-
dence of the availability of "ready, willing and able" DBEs. The regulations state that a dis-
parity study can be used to demonstrate availability, but does not require its use. A ruling
in the Ninth Circuit Court of Appeals, however, has made the use of a valid disparity study
a legal requirement to meet the standards in that Circuit. The ruling in the Ninth Circuit as
well as those in other Circuits demonstrates a trend toward utilizing a disparity study to jus-
tify race-conscious elements of a DOT DBE program in response to constitutional chal-
lenges. Thus, state DOTs, especially those in the Ninth Circuit, will be conducting dispar-
ity studies at considerable expense.
There are no guidelines or standards provided to states by the U.S. DOT on the elements
of an effective disparity and availability study. Because each state is unique, a broad, over-
arching framework is needed to guide the development and conduct of disparity and avail-
ability studies.
Under NCHRP Project 20-76, a research team led by NERA Economic Consulting
reviewed current DOT goal-setting methods, conducted a thorough review of existing dis-
parity and availability studies, and analyzed relevant court decisions. Current studies were
compared according to key elements: definition and use of geographic and product mar-
kets, development of availability estimates, analysis of contracting disparities, analyses of
economy-wide disparities, and collection of anecdotal evidence. A model scope of work was
developed that identified major elements to be included and offered tips for a successful
process. The report includes appendices on the importance of collecting comprehensive
subcontract data, understanding the concept and definition of "capacity," and legal stan-
dards for race-conscious government contracting programs.
OCR for page R8
CONTENTS
1 Chapter 1 Overview of Legal Standards for Disadvantaged
Business Enterprise Programs
1 Strict Scrutiny Standard
2 Intermediate Scrutiny
2 Strict Scrutiny as Applied to the Disadvantaged Business Enterprise Program
7 Implications and Effects of Western States
8 TRB Model Disparity Study Project
9 Chapter 2 Designing Defensible DBE Programs
9 Introduction
12 Guidelines for Conducting Disparity and Availability Studies
16 Review of Existing Studies
25 Current State DOT Goal-Setting Methods
29 Chapter 3 Model Disparity Study
29 Determination of Relevant Geographic Market Area
29 Determination of Relevant Product Market
30 Estimation of DBE Availability
48 State DOT Utilization Analyses
48 State DOT Disparity Analyses
51 Economy-Wide Disparity Analyses for the Relevant Markets
51 Anecdotal Analyses
54 Chapter 4 Study Resource Issues
54 Sources of Funds
54 Management of the Study Process
55 In-House Studies versus Outside Consultants
55 Availability Studies versus Disparity Studies
55 Collection of Subcontracting Data
56 Subrecipient Data
56 Examples of Costs for Other Analytical Elements
56 Multi-Jurisdiction Studies
57 Multi-Agency State Studies
57 Model Study Scope of Work
58 Tips for a Successful DBE Disparity or Availability Study RFP Process
60 Appendix A Importance of Comprehensive
Subcontract Data Collection
60 Introduction
60 Non-DBE Subcontract Data Is Just as Important as DBE Subcontract Data
62 Subcontract Data Allow Detailed Industry Statistics
62 Methods for Collecting Subcontract Data in Anticipation of Future Studies
63 Methods for Addressing Missing Subcontract Data for Current Studies
OCR for page R9
65 Appendix B Understanding "Capacity"
68 Appendix C Legal Standards for Race-Conscious Government
Contracting Programs
68 Strict Scrutiny Standard
79 Strict Scrutiny as Applied to the Disadvantaged Business Enterprise Program
82 State DOTs' Implementation of Part 26 Must be Narrowly Tailored
84 Judicial Review of DBE Goal Setting Under Part 26
88 Additional Evidence of Discrimination
92 Additional Elements of Narrowly Tailored DBE Goal Setting
94 Implications of Western States
96 Appendix D Glossary
99 References
99 Cases (Alphabetical)
100 Cases (By Circuit)
101 Statutes
101 Regulations
101 General References
102 Disparity and Availability Studies
