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Procurement, Management, and Administration of Engineering and Design Related Services - Questions and Answers

VII. Disadvantaged Business Enterprise (DBE) Considerations

  1. Are contracting agencies required to give consideration to DBE consulting engineering firms in the procurement of engineering and design related services? (Posted 7-20-11)
  2. Under competitive negotiation/qualifications based selection (Brooks Act) procurement procedures, may a contracting agency consider the use/participation of DBEs as an evaluation criterion in the selection of the most highly qualified consulting firm/team? (Posted 7-20-11)
  3. May a contracting agency set goals for DBE participation on engineering and design related services contracts? (Posted 7-20-11)
  4. May a contracting agency advertise or solicit engineering and design related services with set-asides exclusive for DBE consulting firms? (Posted 7-20-11)

1. Are contracting agencies required to give consideration to DBE consulting engineering firms in the procurement of engineering and design related services? (Posted 7-20-11)

Yes, contracting agencies are required to give consideration to DBE consultants in the procurement of engineering and design related services contracts using FAHP funding (as specified in 23 CFR 172.5(b) and 49 CFR 26).

Recipients of FAHP funding must develop a DBE program that includes procedures and methods for: establishing DBE program participation goals, setting participation goals on specific contracts, and monitoring and reporting on the performance of its DBE participation. The use of DBE set-aside contracts or quotas for DBEs is prohibited by Federal regulations(as specified in 49 CFR 26.43) (See DBE Program Question & Answer Nos. 3 and 4 and the Preamble to 49 CFR Part 26 in 64 FR 5097 for a discussion of set-asides, quotas, and goals). Contracting agencies are not eligible to receive FAHP funding unless FHWA has approved the agency's DBE program and the agency remains in compliance with its approved program (as specified in 49 CFR 26.21(c)).

DBE program participation goals, as well as the method for achieving them, are specific to the DBE program developed by the contracting agency and subject to FHWA approval. To the extent practical, a contracting agency must achieve DBE program participation goals through race and gender-neutral measures (as specified in 49 CFR 26.39 and 26.51(a)). DBE participation on all contracts funded with FAHP funds, whether for professional or construction services, may be counted toward overall DBE program participation goals.

When overall DBE program participation goals cannot be met through race-neutral measures, additional DBE participation on engineering and design related services contracts may be achieved through either one of two methods in accordance with an agency's FHWA approved DBE program:

For additional information regarding the DBE Program, please visit the FHWA Office of Civil Rights web site at: http://www.fhwa.dot.gov/civilrights/programs/dbess.htm and the U.S. Department of Transportation DBE Program web site at: http://osdbu.dot.gov/DBEProgram/index.cfm.

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2. Under competitive negotiation/qualifications based selection (Brooks Act) procurement procedures, may a contracting agency consider the use/participation of DBEs as an evaluation criterion in the selection of the most highly qualified consulting firm/team? (Posted 7-20-11)

Yes, the use/participation of certified DBE sub-consultant firms may be utilized as an evaluation criterion where appropriate in assessing the qualifications of firms/teams to perform the solicited services. Use of an evaluation factor for DBE participation in the procurement of engineering and design related services must comply with Federal laws and regulations (as specified in 49 CFR 26) and be consistent with the agency's FHWA approved DBE program. (See DBE Considerations Question & Answer No. 1)

The competitive negotiation/qualifications based selection process required for the procurement of FAHP funded engineering and design related services requires evaluation and selection based on demonstrated competence and qualifications to perform the solicited services. However, agencies are required to give consideration to DBE consultants in the procurement of engineering and design related services contracts using FAHP funding (as specified in 23 CFR 172.5(b) and 49 CFR 26). To harmonize Federal regulations related to qualifications based selection and DBEs, a contracting agency may establish the use/participation of certified and qualified DBE sub-consultant firms as an evaluation criterion of no more than ten (10) percent of the total evaluation criteria in assessing the qualifications of firms/teams to perform the solicited services.

In awarding points for a DBE participation criterion in the evaluation and selection of the most highly qualified consulting firm/team, evaluation/selection officials must consider the prime consultant's good faith efforts (as specified in 49 CFR 26 Appendix A) to engage DBEs, as demonstrated in the firm's response to the solicitation. Consulting firms which have demonstrated good faith efforts to engage DBE firms in the delivery of the solicited services shall be considered to have satisfied the DBE evaluation criterion.

If, during the negotiation phase of the procurement process, work proposed to be performed by DBEs in the response to the solicitation is decreased or eliminated through negotiation of the scope of services, the prime consultant must use good faith efforts in revision of its proposal to provide for the participation of DBEs at the level indicated in its response to the solicitation. These good faith efforts should consider the use of DBEs to perform services in other areas of the project in order to obtain the level of DBE participation originally proposed. Failure of the most highly qualified (top-ranked) firm to make adequate good faith efforts during negotiation to provide for the proposed level of DBE participation permits the contracting agency to terminate negotiations and initiate negotiations with the number two-ranked firm. This is based on the fact that DBE participation was utilized as an evaluation criterion to rank the qualified firms/teams.

To maintain the integrity of a competitive negotiation/qualifications based selection procurement, the total of all allowable non-qualifications based evaluation criterion (locality preference and/or DBE participation) should not exceed ten (10) percent of the total evaluation criteria. (See Competitive Negotiation Question & Answer No. 9 regarding local office presence as an evaluation criterion) The ten (10) percent limitation applies only to non-qualifications based evaluation criterion and should not be considered as a limitation for specific DBE contract goals established by a contracting agency in accordance with its approved DBE program. (See DBE Considerations Question & Answer Nos. 1 and 3)

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3. May a contracting agency set goals for DBE participation on engineering and design related services contracts? (Posted 7-20-11)

Yes, a contract DBE participation goal may be established on engineering and design related services contracts that have sub-consulting opportunities (as specified in 49 CFR 26.51). The establishment and implementation of a contract DBE participation goal must comply with Federal laws and regulations (as specified in 49 CFR 26) and be consistent with the agency's FHWA approved DBE program. (See DBE Considerations Question & Answer No. 1)

If a contracting agency establishes a DBE participation goal on a consultant services contract, the agency cannot disqualify a consultant for failing to meet the contract goal provided the consultant made good faith efforts to meet the participation goal (as specified in 49 CFR 26.53 and Appendix A). A contracting agency may place in the advertisement or solicitation for engineering and design related services that the prime consultant must meet the established contract DBE participation goal or demonstrate good faith efforts to meet it. The most highly qualified (top-ranked) firm would be required to demonstrate how the firm would meet the contract goal at the negotiation phase of the procurement process.

If, during the negotiation phase of the procurement process, work proposed to be performed by DBEs in the response to the solicitation is decreased or eliminated through negotiation of the scope of services, the prime consultant must use good faith efforts in revision of its proposal to provide for the participation of DBEs to meet the established contract goal. The fact that the prime consultant could perform the work with its own forces does not relieve it from making good faith efforts to meet the DBE goal. If the top-ranked firm does not meet the goal or demonstrate a good faith effort, the contracting agency may terminate negotiations and initiate negotiations with the number two-ranked firm.

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4. May a contracting agency advertise or solicit engineering and design related services with set-asides exclusive for DBE consulting firms? (Posted 7-20-11)

No, as the use of DBE set-aside contracting which restricts competition for specified contracts to DBE firms is prohibited by Federal regulations (as specified in 49 CFR 26.43). (See DBE Considerations Question & Answer No. 1 and the Preamble to 49 CFR Part 26 in 64 FR 5097 for a discussion of set-asides, quotas, and goals)

However, a race-neutral small business set-aside program which restricts competition to only small businesses, regardless of the socially and economically disadvantaged status of their owners, may be permitted for prime contracts (as specified in 49 CFR 26.39 (76 FR 5097)) procured under small purchase procedures (as specified in 23 CFR 172.5(a)(2)) (See Other Procurement Procedures Question & Answer No. 2), subject to State and local laws, regulations, policies, and procedures and FHWA approval.

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Updated: 09/29/2014
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