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What's New in Civil Rights

DBE UPDATE Click here to view the PowerPoint Presentation DBE UPDATE Birmingham, August 2009 Slide - 2 HOUSE HEARING • March 2009, House T&I • Purpose was to put before Congress evidence of continuing compelling need for DBE program • Idea, in part, is to head off Rothe-style attacks • DOT statistical evidence, disparity studies, testimony from DBEs Slide - 3 H.R. 915 • House-passed FAA reauthorization bill • Senate currently working on its version • Includes findings of continuing need for DBE program • Several program changes: PNW inflation adjustment, retirement accounts, training • Doesn't directly address interstate certification • House surface bill likely to include similar features Slide - 4 DOT NPRM • Proposed 3-year rather than annual goal submission and review for Part 26 • About 30 comments • Most favored longer cycle (reduced burdens), but want opportunity to adjust • Some opposition (not flexible enough to respond to market or grant changes) • Next step - draft final rule Slide - 5 DOT ANPRM • Asked for comment on 6 issues, most resulting from stakeholder meetings • Around 30 comments • Next stage - NPRM asking for comment on specific proposals Slide - 6 COUNTING ISSUE • Issue concerns whether to count as DBE participation stuff a DBE sub obtains from the prime contractor on a project. Current reg says no. • Comments were varied: some want to maintain status quo, some want state to be able to make exceptions some want to count stuff obtained from prime, others want nothing from third-party sources to count Slide - 7 UNBUNDLING • Concept is to break up large contracts into bite-size chunks small firms, including DBEs, can do. • Everybody thinks this would be a good thing to do, few think it is practical • Most commenters said leave to state discretion • Some specific proposals for regulatory requirements (e.g., require for a certain contract size, provide incentives for unbundling) Slide - 8 FORMS • Widespread support for rewrite of PNW and, to a lesser extent, application forms • Many specific, detailed suggestions for modifying forms, Including a couple model forms that people sent in Slide - 9 INTERSTATE CERTIFICATION • Issue is how to facilitate certification in State B of firm certified in State A, while maintaining program integrity • Big issue for DBE community • Barriers are the 3 Ts - training, trust, and turf • DOT took big step in 1999 by requiring UCPs for one stop shopping within each state • ANPRM asked what next steps should be Slide -10 INTERSTATE CERTIFICATION (2) • Majority of commenters favored some sort of reciprocity • Some of these wanted pure reciprocity • Others would allow post-certification review by State B for fraud or other reasons • A few comments supported "Federalizing" certification or a national DBE data base • Some comments opposed reciprocity: wanted to maintain local control or to wait until there was better nationwide training Slide - 11 INTERSTATE CERTIFICATION (3) • Some states preferred simply to make own decisions based on documentation provided by State A • Widespread support for uniform national training Slide - 12 OVERSIGHT • Commenters had very different ideas about what sort of oversight was needed • Most recipients commenting wanted more DOT $ if DOT wanted more oversight • Some commenters thought things were fine as is Slide - 13 T for C • Current rule says if prime wants to dump DBE sub it signed up to meet goal for other than good cause, and self-perform work, then prime needs written consent from recipient • ANPRM asked if same rule should apply any time prime wants to dump DBE, even if prime doesn't want to self- perform • 15 of 18 comments favored adding such a requirement Slide - 14 OTHER REG PROJECTS • Final rule doing size inflationary adjustment already issued • Refinement of some ownership criteria • Potential project on PNW inflationary adjustment • Airport concessions: sunset/program review; national car rental goals Slide -15 RECENT Q&A'S • Small business set-asides • Relationship between certification in particular types of work and eligibility for DBE credit to meet a contract goal • DBE coverage under ARRA (highway, transit, and airport projects, but not high-speed rail or OST discretionary "Tiger grants") Slide - 16 ARRA BONDING PROGRAM • $20m in ARRA for DBE bonding program, applying to ARRA-funded DOT projects • DOT OSDBU worked with SBA to set up joint program SBA bailed out at last minute • DOT now working on new version of program. • Would defray fees for bond premiums and SBA fees, where SBA program is involved • Estimate this could be $350k per bond, for assistance to 1500-2100 DBEs Slide - 17 ST. LOUIS DUAL GOAL PROPOSAL • MODOT and IDOT, prodded by local MBE community, plan to ask for program waiver to have separate MBE/WBE goals, rather than a single DBE goal, on a mega-project for a new Mississippi River bridge • Concern is that too few MBEs get work vs. white female-owned firms • Some public meetings and work with a consultant to come up with rationale and supporting data. Slide - 18 ST. LOUIS DUAL GOAL PROPOSAL (2) • There have been 3 waivers of Pt. 26 prohibition of group specific goals: CO, CA, OR • In each case, detailed disparity study showed overutilization for some groups and underutilization for others • There is not yet a disparity study for MO/IL • Waiver request was supposed to be in already; apparently data is delayed. First solicitations are in September.

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