Management of Disadvantaged Business Enterprise Issues in Construction Contracting (2005) / Chapter Skim
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Appendix B - Final Rule 49 CFR 26, 2003
Appendix B - Final Rule 49 CFR 26, 2003
Pages 44-90
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From page 44... ...
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?
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From page 45... ...
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?
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From page 46... ...
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)
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From page 47... ...
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.
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From page 48... ...
(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.
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From page 49... ...
(1) You must submit a DBE program conforming to this part by August 31, 1999, to the concerned operating administration (OA)
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From page 50... ...
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.
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From page 51... ...
$250,000 or less in FTA or FAA funds in prime contracts in a Federal fiscal year, you are not required to develop overall goals for FTA or FAA, respectively, for that fiscal year. However, if you have an existing DBE program, it must remain in effect and you must seek to fulfill the objectives outlined in §26.1.
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From page 52... ...
(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.
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From page 53... ...
(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.
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From page 54... ...
(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)
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From page 55... ...
You must report these data to the concerned operating administration as provided in §26.11. §26.53 What are the good faith efforts procedures recipients follow in situations where there are contract goals?
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From page 56... ...
(5) Your decisions on commercially useful function matters are subject to review by the concerned operating administration, but are not administratively appealable to DOT.
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From page 57... ...
(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.
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From page 58... ...
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.
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From page 59... ...
(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 nondisadvantaged individual or non-DBE firm who is --
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From page 60... ...
(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.
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From page 61... ...
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.
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From page 62... ...
Example 4: Same as Examples 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.
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From page 63... ...
(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.
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From page 64... ...
However, you may provide in your DBE program, with the approval of the concerned operating administration, for supplementing the form by requesting additional information not inconsistent with this part.
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From page 65... ...
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.
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From page 66... ...
(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.
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From page 67... ...
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.
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From page 68... ...
(a) If you fail to comply with any requirement of this part, you may be subject to formal enforcement action under §26.103 or §26.105, or appropriate program sanctions by the concerned operating administration, such as the suspension or termination of 68
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From page 69... ...
(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.
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From page 70... ...
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.
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From page 71... ...
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.
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From page 72... ...
Appendix B to Part 26 -- Uniform Report of DBE Awards or Commitments and Payments Form 72
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From page 73... ...
73 [64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003]
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From page 74... ...
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)
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From page 75... ...
To operate a mentor–protège program, a recipient must obtain the approval of the concerned operating administration.
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From page 76... ...
(2) of this appendix, recipients will attribute to an individual claiming disadvantaged status any assets that 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 2 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.
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From page 77... ...
77 Appendix F to Part 26 -- Uniform Certification Application Form
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From page 90... ...
90 [68 FR 35559, June 16, 2003]
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