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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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