HomeMy WebLinkAboutR-2012-037 Yakima Transit Disdvantaged Business Enterprise Program Amendment RESOLUTION NO. R- 2012 -37
A RESOLUTION amending Yakima Transit's Disadvantaged Business Enterprise Program, as
required by the Federal Transit Administration's regulations (49 CFR Part 26).
WHEREAS, in 1983, Congress enacted the Department of Transportation's (DOT)
requirement for a Disadvantaged Business Enterprise (DBE) Program.
WHEREAS, The objectives of the program are to ensure nondiscrimination in the award
and the administration of DOT - assisted contracts in the Department's financial assistance
programs; create a level playing field on which DBEs can compete fairly for DOT - assisted
contracts; ensure that the Department's DBE program is narrowly tailored in accordance with
applicable law; ensure that only firms that fully meet this part's eligibility standards are permitted
to participate as DBEs, help remove barriers to the participation of DBEs in DOT - assisted
contracts; assist the development of firms that can compete successfully in the marketplace
outside the DBE program; and, provide appropriate flexibility to recipients of Federal financial
assistance in establishing and providing opportunities for DBEs,
WHEREAS, the City of Yakima operates a public transit system for use by the general
public regulated by the Federal Transit Administration (FTA), an agency of the DOT, and is
subject to FTA requirements including requirements to maintain an up -to -date DBE Program;
WHEREAS, on January 28, 2011, the Federal Transit Administration amended their
Disadvantaged Business Enterprise regulations, which specifically requires Yakima Transit to
update its Program to include a section to Foster Small Business Participation; and,
WHEREAS, Yakima Transit's DBE program has incorporated changes required by the
FTA in their January 28, 2011, amendments to 49 CFR Part 26
NOW, THEREFORE, BE IT RESOLVE BY THE CITY COUNCIL OF THE CITY OF
YAKIMA.
The City of Yakima DBE Program for Yakima Transit, attached and incorporated hereto, is
hereby approved and adopted for implementation by the City of Yakima and staff is directed to
implement the Disadvantaged Business Enterprise Program, as of the date of this resolution's
enactment by the City of Yakima City Council.
ADOPTED BY THE CITY COUNCIL at a regular meeting this 6th day of March, 2012
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CITY OF YAKIMA
DBE PROGRAM
POLICY STATEMENT
Section 26.1, 26.23 Objectives/Policy Statement
The City of Yakima Transit Division, hereinafter referred to as the City has established a Disadvantaged Business
Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT), 49 CFR
Part 26. The City has received Federal financial assistance from the Department of Transportation, and as a
condition of receiving this assistance, the City has signed an assurance that it will comply with 49 CFR Part 26.
It is the policy of the City to ensure that DBEs are defined in Part 26, have an equal opportunity to receive and
participate in DOT — assisted contracts. It is also our policy:
1. To ensure nondiscrimination in the award and administration of DOT — assisted contracts;
2. To create a level playing field on which DBEs can compete fairly for DOT - assisted contracts;
3. To ensure that the DBE Program is narrowly tailored in accordance with applicable law;
4. To ensure that only firms that fully meet 49 CFR Part 26 eligibility standards are permitted to participate as
DBEs;
5. To help remove barriers to the participation of DBEs in DOT assisted contracts;
6. To assist the development of firms that can compete successfully in the market place outside the DBE
Program.
Sue Ownby, Purchasing Manager, has been delegated as the DBE Liaison Officer. In that capacity, the Purchasing
Manager is responsible for implementing all aspects of the DBE program. Implementation of the DBE program is
accorded the same priority as compliance with all other legal obligations incurred by the City in its financial
assistance agreements with the Department of Transportation.
The City has disseminated this policy statement to the City Council and all of the components of our organization.
We have distributed this statement to DBE and non -DBE business communities that perform work for us on DOT -
assisted contracts. A notice of the existence of this policy will be sent to all DBE vendors registered in Yakima
County. The entire DBE Program and Goal Methodology will also be made permanently available on the City's
Website: www.ci.yakima.wa.us /services /purchasing
J — ( -12
Michael Morales, Interim City Manager Date
CITY coNTRAc r N /) 1
RESOLUTION N0:
Yakima DBE Program Page 1 of 60
SUBPART A — GENERAL REQUIREMENTS
Section 26.1 Objectives
The objectives are found in the policy statement on the first page of this program.
Section 26.3 Applicability
The City of Yakima Transit, hereinafter referred to as the City, is the recipient of federal transit funds authorized by
Titles I, III, V, and VI of ISTEA, Pub. L. 102 -240 or by Federal transit laws in Title 49, U.S. Code, or Titles I, II,
and V of the Teas -21, Pub. L. 105 -178.
Section 26.5 Definitions
The City will adopt the definitions contained in 49 CFR § 26.5 for this program.
Section 26.7 Non - discrimination Requirements
The City will never exclude any person from participation in, deny any person the benefits of, or otherwise
discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part
26 on the basis of race, color, - sex, or national origin.
In administering its DBE program, the City will not, directly or through contractual or other arrangements, use
criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of
the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin.
Section 26.11 Record Keeping Requirements
Reporting to DOT: 26.11(b)
We will report DBE participation to DOT as follows:
We will report DBE participation on a semi - annual basis, using the Uniform Report of DBE
Commitments /Awards and Payments. These reports will reflect awards /commitments made and payments
actually made to DBEs on DOT - assisted contracts.
Bidders List: 26.11(c)
The City will create a bidders list, consisting of information about all DBE and non -DBE firms that bid or quote on
DOT - assisted contracts. The purpose of this requirement is to allow use of the bidders' list approach to calculating
overall goals. The bidder list will include the name, address, DBE non -DBE status, age, and annual gross receipts of
firms.
We will collect this information in the following ways:
With each formal bid or proposal that is sent out by the City of Yakima Purchasing Division, a Personnel Form
(see Attachment 7) will be enclosed and required to be returned with the bid/proposal documents. The
Personnel Inventory Forms will be assembled into a binder, enabling the calculation for overall goals.
Purchasing Staff will form vendors' lists for our geographical area utilizing www.omwbe.wa.gov to seek out
and capture available DBE Vendors available to bid on projects.
Section 26.13 Federal Financial Assistance Agreement
The City has signed the following assurances, applicable to all DOT - assisted contracts and their administration:
Assurance: 26.13(a)
Yakima DBE Program Page 2 of 60
The City of Yakima shall not discriminate on the basis of race, color, national origin, or sex in the award and
performance of any DOT assisted contract or in the administration of its DBE Program or the requirements of
49 CFR Part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure
nondiscrimination in the award and administration of DOT assisted contracts. The recipient's DBE Program, as
required by 49 CFR Part 26 and as approved by DOT, is incorporated by reference in this agreement.
Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a
violation of this agreement. Upon notification to the City of its failure to carry out its approved program, the
Department may impose sanction as provided for under Part 26 and may, in appropriate cases, refer the matter
for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801
et seq).
This language will appear in financial assistance agreements with sub - recipients.
Contract Assurance: 26.13b
We will ensure that the following clause is placed in every DOT - assisted contract and subcontract:
The contractor, sub - recipient, or subcontractor shall not discriminate on the basis of race, color, national
origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements
of 49 CFR Part 26 in the award and administration of DOT assisted contracts. Failure by the contractor
to carry out these requirements is a material breach of this contract, which may result in the termination of
this contract or such other remedy as the recipient deems appropriate.
SUBPART B - ADMINISTRATIVE REQUIREMENTS
Section 26.21 DBE Program Updates
Since the City has received a grant of $250,000 or more in FTA planning capital and/or operating assistance in a
federal fiscal year, we will continue to carry out this program until all funds from DOT financial assistance have
been expended. We will provide to DOT updates representing significant changes in the program.
Section 26.23 Policy Statement
The Policy Statement is elaborated on the first page of this program.
Section 26.25 DBE Liaison Officer (DBELO)
We have designated the following individual as our DBE Liaison Officer:
Sue Ownby, Purchasing Manager
City Of Yakima
129 North 2 Street
Yakima, WA 98901
Phone: 509 -576 -6695
Fax: 509 -576 -6695
Email: sownby @ci.yakima.wa.us
In that capacity, the DBELO is responsible for implementing all aspects of the DBE program and ensuring that the
City complies with all provision of 49 CFR Part 26. The DBELO has direct, independent access to the City of
Yakima City Manager concerning DBE program matters. An organization chart displaying the DBELO's position
in the organization is found in Attachment 1 to this program.
The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination with
other appropriate officials. The DBELO has a staff of four (4) to assist in the administration of the program. The
duties and responsibilities include the following:
1 Gathers and reports statistical data and other information as required by DOT.
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2. Reviews third party contracts and purchase requisitions for compliance with this program.
3. Works with City of Yakima Transit to set overall triennial goals.
4. Ensures that bid notices and requests for proposals are available to DBEs in a timely manner.
5. Identifies contracts and procurements so that DBE goals are included in solicitations (both race - neutral
methods and contract specific goals attainment and identifies ways to improve progress.)
6. Analyzes the City's progress toward attainment and identifies ways to improve progress.
7. Participates in pre -bid meetings.
8. Advises the City Manager and City Council on DBE matters and achievement.
9. Provides DBEs with information and assistance in preparing bids, obtaining bonding and insurance.
10 Plans and participates in DBE training seminars.
11. Assists potential DBEs to become certified according to the criteria set by DOT and acts as liaison to the
Uniform Certification Process in Washington.
12. Provides outreach to DBEs and community organizations to advise them of opportunities.
13. Maintains the City's updated directory on certified DBEs.
14. Maintains an open dialogue and working relationship with the Yakima Hispanic Chamber, as well as
Rural Community Development Resources.
15. Forwards all bid solicitations to the Hispanic Chamber.
16. Offers training on how to do business with the city and assistance to any potential DBE.
Section 26.27 DBE Financial Institutions
It is the policy of the City to investigate the full extent of services offered by financial institutions owned and
controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to
use these institutions, and to encourage prime contractors on DOT - assisted contract to make use of these
institutions. We have made the following efforts to identify and use such institutions: Conducted a search at
www.omwbe.wa.gov and searched under N.A.I.C.S. Code 921130, Public Finance Activities. No certified firms
were listed.
To date we have identified the following such institutions: None
Information on the availability of such institutions can be obtained from the DBE Liaison Officer.
Section 26.29 Prompt Payment Mechanisms
The City will include the following clause in each DOT - assisted prime contract:
The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of
its contract no later than thirty (30) days from the receipt of each payment the prime contract receives from the
City. The prime contractor agrees further to return retainage payments to each subcontractor within thirty (30)
days after the subcontractors work is satisfactorily completed. Any delay or postponement of payment from the
above referenced time frame may occur only for good cause following written approval of the DEBELO. This
clause applies to both DBE and non -DBE subcontracts.
Section 26.31 Directory
The City maintains a directory identifying all firms eligible to participate as DBEs. The directory lists the firm's
name, address, phone number, date of the most recent certification, and the type of work the firm has been certified
to perform as a DBE. We revise the Directory annually We make the Directory available on the City's webpage at
www.ci.yakima.wa.us /services /purchasing The Directory may be found in Attachment 2 to this program document.
Section 26.33 Overconcentration
The City has not identified that overconcentration exists in the types of work that DBEs perform.
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Section 26.35 Business Development Programs
The City has not established a business development program.
Section 26.37 Monitoring and Enforcement Mechanisms
The City will use the following monitoring and enforcement mechanisms to ensure compliance with 49 CFR Part
26.
1. We will bring to the attention of the Department of Transportation any false, fraudulent, or dishonest conduct in
connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for
criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program
Fraud and Civil Penalties rules) provided in 49 CFR § 26.109.
2. We will consider similar action under our own legal authorities, including responsibility determinations in
future contracts.
3. We will also provide a monitoring and enforcement mechanism to verify that work committed to DBEs at
contract award is actually performed by the DBEs. This will be accomplished by actually overseeing the work
performed by the DBE committed to do the work and verifying contractors and sub - contractors are eligible
DBE's on OMWBE's website. This will include a certification that the DBE Liaison has reviewed contracting
records and monitored work sites in Washington State for this purpose.
4. We will keep a running tally of actual payments to DBE firms for work committed to them at the time of
contract award.
Section 26.39 Fostering Small Business Participation
The City will structure contracting requirements to facilitate competition by small business concerns, taking all
reasonable steps to eliminate obstacles to their participation, including unnecessary and unjustified bundling of
contract requirements that may preclude small business participation in procurements as prime contractors or
subcontractors. This may include, where allowable by State law:
1. Establishing a race - neutral small business set -aside for prime contracts under $1 million.
2. In multi -year design -build contracts or other large contracts (e.g., for "megaprojects ") requiring bidders on the
prime contract to specify elements of the contract or specific subcontracts that are of a size that small
businesses, including DBEs, can reasonably perform.
3. On prime contracts not having DBE contract goals, requiring the prime contractor to provide subcontracting
opportunities of a size that small businesses, including DBEs, can reasonably perform, rather than self
performing all the work involved.
4. Identifying alternative acquisition strategies and structuring procurements to facilitate the ability of consortia or
joint ventures consisting of small businesses, including DBEs, to compete for and perform prime contracts.
5. Ensuring that a reasonable number of prime contracts are of a size that small businesses, including DBEs, can
reasonably perform.
SUBPART C — GOALS, GOOD FAITH EFFORTS, AND COUNTING
Section 26.43 Set - asides or Quotas
The City does not use quotas in any way in the administration of this DBE program.
Section 26.45 Overall Goals
A description of the methodology to calculate the overall goal and the goal calculations can be found in Attachment
4 to this program. This program section will be updated every three years.
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In accordance with Section 26.45(f) the City will submit its overall goal to DOT on August 1 every year. Before
establishing the overall goal every year, The City will consult with the Hispanic Chamber of Yakima, and OMWBE
to obtain information concerning the availability of disadvantaged and non - disadvantaged businesses, the effects of
discrimination on opportunities for DBEs, and the City's efforts to establish a level playing field for the participation
of DBEs.
Following this consultation, we will publish a notice of the proposed overall goals, informing the public that the
proposed goal and its rational are available for inspection during normal business hours at your principal office for
30 days following the date of the notice, and informing the public that you and DOT will accept comments on the
goals for 45 days from the date of the notice. The Notice will be placed in the Yakima Herald - Republic and on the
City's website under Purchasing's page at www.ci.yakima.wa.us /services /purchasing. Normally, we will issue this
notice by June 1 of each year. The notice must include addresses to which comments may be sent and addresses
(including offices and websites) where the proposal may be reviewed.
There were no comments submitted during the 45 day notice that was advertised July 10, 2009.
Our overall goal submission to DOT will include a summary of information and comments received during this
public participation process and our responses.
We will begin using our overall goal on October 1 of each year, unless we have received other instructions from
DOT. If we establish a goal on a project basis, we will begin using our goal by the time of the first solicitation for a
DOT - assisted contract for the project.
Section 26.47 Can recipients be penalized for failing to meet overall goals?
If the City fails to meet the annual goals, they will analyze in detail the reasons for the differences between the
overall goal and their awards and commitments in that fiscal year. They will also establish specific steps and
milestones to correct the problems they have identified in their analysis to enable them to meet fully their goal for
the new fiscal year.
Section 26.49 Transit Vehicle Manufacturers Goals
The City requires each transit vehicle manufacturer, as a condition of being authorized to bid or propose on FTA-
assisted transit vehicle procurements, to certify that it has complied with the requirements of 49 CFR §26.49.
Alternatively, the City may, at its discretion and with FTA approval, establish project - specific goals for DBE
participation in the procurement of transit vehicles in lieu of the TVM complying with this element of the program.
Section 26.51(a -c) Breakout of Estimated Race - Neutral & Race - Conscious Participation
The City does not intend to use any race - conscious participation.
Section 26.51(d -g) Contract Goals
The City will use contract goals to meet any portion of the overall goal the city does not project being able to meet
using race - neutral means. Contract goals are established so that, over the period to which the overall goal applies,
they will cumulatively result in meeting any portion of our overall goal that is not projected to be met through the
use of race - neutral means.
We will establish contract goals only on those DOT - assisted contracts that have subcontracting possibilities. We
need not establish a contract goal on every such contract, and the size of contract goals will be adapted to the
circumstances of each such contract (e.g., type and location of work, availability of DBEs to perform the particular
type of work.)
We will express our contract goals as a percentage of the total amount of the DOT assisted contract.
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Section 26.53 Good Faith Efforts Procedures
Demonstration of good faith efforts (26.53(a) & (c))
The obligation of the bidder /offeror is to make good faith efforts. The bidder /offeror can demonstrate that it has
done so either by meeting the contract goal or documenting good faith efforts. Examples of good faith efforts are
found in Appendix A to Part 26.
The DBELO is responsible for determining whether a bidder /offeror who has not met the contract goal has
documented sufficient good faith efforts to be regarded as responsible.
We will ensure that all information is complete and accurate and adequately documents the bidder /offer's good faith
efforts before we commit to the performance of the contract by the bidder /offeror.
Information to be submitted (26.53(b))
The City treats bidder /offers' compliance with good faith efforts' requirements as a matter of responsibility.
Each solicitation for which a contract goal has been established will require the bidders /offerors to submit the
following information:
1. The names and addresses of DBE firms that will participate in the contract;
2. A description of the work that each DBE will perform;
3. The dollar amount of the participation of each DBE firm participating;
4. Written and signed documentation of commitment to use a DBE subcontractor whose participation it
submits to meet a contract goal;
5. Written and signed confirmation from the DBE that it is participating in the contract as provided in the
prime contractors commitment; and,
6. If the contract goal is not met, evidence of good faith efforts.
Administrative Reconsideration (26.53(d))
Within ten (10) calendar days of being informed by the City that it is not responsible because it has not documented
sufficient good faith efforts, a bidder /offeror may request administrative reconsideration. Bidder /offerors should
make this request in writing to the following reconsideration official:
Sue Ownby, Purchasing Manager
129 North 2 Street
Yakima, WA 98901
The reconsideration official will not have played any role in the original determination that the bidder /offeror did not
document sufficient good faith efforts.
As part of this reconsideration, the bidder /offeror will have the opportunity to provide written documentation or
argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. The
bidder /offeror will have the opportunity to meet in person with our reconsideration official to discuss the issue of
whether it met the goal or made adequate good faith efforts to do. We will send the bidder /offeror a written decision
on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate
good faith efforts to do so. The result of the reconsideration process is not administratively appealable to the
Department of Transpiration.
Good Faith Efforts when a DBE is replaced on a contract (26.53(f))
The City will require that a prime contractor not terminate a DBE - subcontractor without prior written consent. The
prime contractor must show good cause to terminate the DBE firm. In addition to post -award terminations, the
provisions of this section apply to preaward deletions of or substitutions for DBE firms put forward by offerors in
negotiated procurements. Good cause includes the following circumstances:
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1. The listed DBE subcontractor fails or refuses to execute a written contract;
2. The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with
normal industry standards. Provided, however, that good cause does not exist if the failure or refusal of the DBE
subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the
prime contractor;
3. The listed DBE subcontractor fails or refuses to meet the prime contractor's reasonable, nondiscriminatory bond
requirements.
4. The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;
5. The listed DBE subcontractor is ineligible to work on public works projects because of suspension and
debarment proceedings pursuant 2 CFR Parts 180, 215 and 1,200 or applicable state law;
6. The City determines that the listed DBE subcontractor is not a responsible contractor;
7. The listed DBE subcontractor voluntarily withdraws from the project and provides to you written notice of its
withdrawal;
8. The listed DBE is ineligible to receive DBE credit for the type of work required;
9. A DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its
work on the contract;
10. Other documented good cause that the City determines compels the termination of the DBE subcontractor.
Provided, that good cause does not exist if the prime contractor seeks to terminate a DBE it relied upon to
obtain the contract so that the prime contractor can self - perform the work for which the DBE contractor was
engaged or so that the prime contractor can substitute another DBE or non -DBE contractor after contract award.
The City will require the prime contractor, before transmitting its request to terminate and/or substitute a DBE
subcontractor, the prime contractor must give notice in writing to the DBE subcontractor, with a copy to the City, of
its intent to request to terminate and/or substitute, and the reason for the request
The prime contractor shall give the DBE five days to respond to the prime contractor's notice and advise the City
and the contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why the
City should not approve the prime contractor's action.
The City will require a contractor to make good faith efforts to replace a DBE that is terminated or has otherwise
failed to complete its work on a contract with another certified DBE, to the extent needed to meet the contract goal.
The City will require the prime contractor to notify the DBE Liaison officer immediately of the DBE's inability or
unwillingness to perform and provide reasonable documentation.
In this situation, we will require the prime contractor to obtain our prior approval of the substitute DBE and to
provide copies of new or amended subcontracts, or documentation of good faith efforts.
If the contractor fails or refuses to comply in the time specified, our contracting office will issue an order stopping
all or part of payment/work until satisfactory action has been taken. If the contractor still fails to comply, the
contracting officer may issue a termination for default proceeding.
Sample Bid Specification:
The requirements of 49 CFR Part 26, Regulations of the U.S. Department of Transportation, apply to this
contract. It is the policy of the City to practice nondiscrimination based on race, color, sex, or national origin in
the award or performance of this contract. All firms qualifying under this solicitation are encouraged to submit
bids /proposals. Award of this contract will be conditioned upon satisfying the requirements of this bid
specification. These requirements apply to all bidders /offerors, including those who qualify as a DBE. A DBE
contract goal of XX.X% has been established for this contract. The bidder /offeror shall make good faith efforts,
as defined in Appendix A, 49 CFR Part 26 (Attachment 1), to meet the contract goal for DBE participation in
the performance of this contract.
The bidder /offeror will be required to submit the following information: (1) the names and addresses of DBE
firms that will participate in the contract; (2) a description of the work that each DBE firm will perform; (3) the
dollar amount of the participation of each DBE firm participating; (4) Written documentation of the
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bidder /offeror's commitment to use a DBE subcontractor whose participation it submits to meet the contract
goal; (5) Written confirmation from the DBE that it is participating in the contract as provided in the
commitment made under (4); and (5) if the contract goal is not met, evidence of good faith efforts.
Section 26.55 Counting DBE Participation
We will count DBE participation toward overall and contract goals as provided in 49 CFR 26.55.
SUBPART D — CERTIFICATION STANDARDS
Section 26.61— 26.73 Certification Process
The City will use the certification standards of Subpart D of 49 CFR Part 26 to determine the eligibility of firms to
participate as DBEs in DOT - assisted contracts. To be certified as a DBE, a firm must meet all certification
eligibility standards. We will make our certification decisions based on the facts as a whole.
For information about the certification process or to apply for certification, firms should contact the Washington
State Office of Minority and Women's Business Enterprises at: www.omwbe.wa.gov
SUBPART E — CERTIFICATION PROCEDURES
Section 26.81 Unified Certification Programs
The City is the member of a Unified Certification Program (UCP) administered by the Washington State Office of
Minority and Women's Business Enterprises. The UPC will meet all of the requirements of this section. A
description of the UCP Program and application are available online at:
http: / /www. omwbe. wa.gov/ certification /application/documents / Application %20for %20W ebsite %20-
%20Federal %20Program %200nly.pdf
Section 26.83 Procedures for Certification Decisions
Re- certifications 26.83(a) & (c)
The City will review the eligibility of DBEs that we certified under former 49 CFR Part 23, to make sure that they
will meet the standards of Subpart E of 49 CFR Part 26. We will complete this review no later than three years from
the most recent certification date of each firm. Our schedule for this review process will be annually, on the
anniversary of their certification date.
For firms that we have certified or reviewed and found eligible under Part 26, we will again review their eligibility
every three years. These reviews will include conversations with the firms (telephone of in person), and
determinations will be made on a case -by -case basis.
"No Change" Affidavits and Notices of Change (26.83(j))
The City requires all DBEs to inform the DBELO, in a written affidavit, of any change in its circumstances affecting
its ability to meet size, disadvantaged status, ownership or control criteria of 49 CFR Part 26 or of any material
changes in the information provided with the City's application for certification.
The City also requires all owners of all DBEs certified to submit, on the anniversary date of their certification, a "no
change" affidavit meeting the requirements of 26.83(j). The test of this affidavit is the following:
I swear (or affirm) that there have been no changes in the circumstances of [name of DBE firm] affecting its
ability to meet the size, disadvantaged status, ownership, or control requirements of 49 CFR Part 26. There
have been no material changes in the information provided with [name of DBE application for certification,
except for any changes about which you have provided written notice to the City under 26.83(j). [Name affirm]
meets Small Business Administration (SBA) criteria for being a small business concern and its average annual
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gross receipts (as defined by SBA rules) over the firm's previous three fiscal years do not exceed $22.41 million
and does not have a personal net worth exceeding $1.32 million.
The City requires DBEs to submit with this affidavit documentation of the firm's size and gross receipts.
The City will notify all currently certified DBE firms of these obligations that have been certified by OMWBE and
are listed in the online directory. This notification will inform DBEs that to submit the "no change" affidavit, their
owners must swear or affirm that they meet all regulatory requirements of Part 26, including personal net worth
($1.32 million). Likewise, if a firm's owner knows or should know that he or she, or the firm, fails to meet a Part 26
eligibility requirement (e.g. personal net worth), the obligation to submit a notice of change applies.
Section 26.85 Interstate Certification
The City will follow Interstate Certification as set forth in 49 CFR 26.85.
Section 26.87 Removal of a DBE's Eligibility
The City will refer and requests for removal of a DBE's eligibility to OMWBE.
Section 26.89 Certification Appeals
Any firm or complainant may appeal our decision in a certification matter to DOT. Such appeals may be sent to:
Department of Transportation
Office of Civil Rights Certification Appeals Branch
1200 New Jersey Avenue, SE
Washington DC 20590
We will promptly implement any DOT certification appeal decisions affecting the eligibility of DBEs for our DOT -
assisted contracting (e.g., certify a firm if DOT has determined that our denial of its application was erroneous).
SUBPART F — COMPLIANCE AND ENFORCEMENT
Section 26.109 Information, Confidentiality, Cooperation
We will safeguard from disclose to third parties information that may reasonably be regarded as confidential
business information, consistent with Federal, state, and local law. Washington State's Public Disclosure Rule
(RCW Ch. 42.56) shall apply.
In responding to requests for information concerning any aspect of the DBE program, the Department complies with
provisions of the Federal Freedom of Information and Privacy Acts (5 U.S.C. 552 and 552a). The Department may
make available to the public any information concerning the DBE program release of which is not prohibited by
Federal law.
Notwithstanding any provision of Federal or state law, the City will not release any information that may reasonably
be construed as confidential business information to any third party without the written consent of the firm that
submitted the information. This includes applications for DBE certification and supporting information. However,
the City must transmit this information to DOT in any certification appeal proceeding under § 26.89 of this part or to
any other state to which the individual's firm has applied for certification under § 26.85 of this part.
The City will follow DBE rules related to keeping confidential information on complainants; cooperate with DOT
on compliance reviews, investigations, and other requests for information; and, will not intimidate, threaten, coerce,
or discriminate against any individual or firm for the purpose of interfering with any right or privilege secured by
this part or because the individual or firm has made a complaint, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this part.
Yakima DBE Program Page 10 of 60
Monitoring Payments to DBEs
The City will require prime contractors to maintain records and documents of payments to DBEs for three years
following the performance of the contract. These records will be made available for inspection upon request by any
authorized representative of the City or DOT. This reporting requirement also extends to any certified DBE
subcontractor.
The City will perform interim audits of contract payments to DBEs. The audit will review payments to DBE
subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts
stated in the schedule of DBE participation.
Yakima DBE Program Page 11 of 60
ATTACHMENTS
Attachment 1 Organizational Chart
Attachment 2 DBE Directory
Attachment 3 Monitoring and Enforcement Mechanisms
Attachment 4 Overall Goal Calculation
Attachment 5 Form 1 & 2 for Demonstration of Good Faith Efforts
Attachment 6 Regulations: 49 CFR Part 26
Attachment 7 Personnel Inventory Form
Attachment 1
Organizational Chart
Yakima Transit
DBE Organizational Chart
City Council
City Manager
DBELO
1
Purchasing Surplus
Property
Yakima DBE Program Page 12 of 60
Attachment 2
DBE Directory
NAICS Description Are There DBE's
CODE In Yak Co?
541810 Advertising Agencies No
334310 Audio And Video Equipment Manufacturing No
811111 Automotive Repair And Replacement Shops, General No
561720 Building Cleaning Services, Janitorial No
485113 Bus And Other Motor Vehicle Transit Systems No
333312 Commercial Laundry, Drycleaning, & Pressing Machine Manufacturing No
332312 Fabricated Structural Metal Manufacturing — For Bus Shelters Yes (1)
Metal Benders, Inc. (Yakima)
45431 Fuel Dealers No
423850 Janitorial Equipment And Supplies Merchant Wholesalers No
561730 Lawn Care Services (E.G.; Fertilizing, Mowing, Seeding, Spraying) No
453210 Office Supplies And Stationary Stores No
485991 Paratransit Transportation Services
441320 Tire Dealers No
448190 Uniform Stores (Except Athletic) No
Registered DBE Organizations Located in Yakima County
Company Owner Phone /Fax Email Address
24 /7 SECURITY JEFF 509 - 952 -0355
LLC BROWNFIELD 509 - 577 -0250 SECURITY247 @HOTMAIL.COM 904 N 4TH ST, Yakima, WA 98901
METAL HARLEY 509 - 453 -3326 2016 FRUITVALE BLVD, Yakima,
BENDERS INC MENARD 509 - 453 -9921 STEVE @MBIYAKIMA.COM WA 98902
VETERANS OF 509 - 225 -9999 1211 S 7TH ST, Yakima, WA
AMERICA LLC TOM DAVIS 509 - 930 -9861 VOAYAK @AOL.COM 98901
Attachment 3
Monitoring and Enforcement Mechanisms
The federal government has available several enforcement mechanisms that it may apply to firms participating in the
DBE problem, including, but not limited to, the following:
1. Suspension or debarment proceedings pursuant to 49 CFR § 26.107 & 49 CFR Part 29
2. Civil fraud action pursuant to 49 CFR Part 31
3. Criminal prosecution (fraud) pursuant to 18 USC 1001.
Yakima DBE Program Page 13 of 60
Attachment 4
Overall Goal Calculation
Table 1 - Determine the weight of each type of work by NAICS Code:
* Enter all the FTA- assisted projects below. Project amounts should be assigned relevant NAICS Code(s).
NAICS Amount of DOT funds on project: % of total DOT funds (weight)
Code Project
1) 5`485991 Dial 'a a'fgide contract =_ $1,000,000:00 0.5123
2) ` 45431:: .Friel'' " °;f> ��:'W "-r a� " ,Ir $667,887.00 0.3422
. - .. - : , k .
3) . :551.720 $20,000.00 0.0102 . ��Busslielter elearung;;���<« -;
'" "K' °' $25,000.00 0.0128
4) �45321�0'�- Printing ;�v <� = �.:,;;,�.:� „ >�_,
5) `t.561 YJanitoral `' =y =t °. m' -:r? $50,000.00 0.0256
6) `, 541810. U:Radio and TV'ads t_ z k $60 0.0307
7) =.81 1`:1':11' Outside vehic1e repairs $90,000.00 0.0461
8) 441320 aTreso y ':k § =s';, $39,000.00 0.0200
Total FTA- Assisted Contract Funds $1,951,887.00 1
Table 2 - Determine the relative availability of DBE's by NAICS Code:
* Use DBE Directory, census data and/or a bidders list to enter the number of available DBE firms and the number
of available firms.
NAICS Project Number of DBEs Number of all Relative
Code available to firms available Availability
perform this work (including DBEs)
1) 485991 Dial A Ride contract r. : = ° `f' q40 „, ,, 2 :w 0.0000
2) 45431 Fuel 0.0000
3) 561720 Bus shelter cleaning - ,_0 _ :irfi'�'S ���€ 0.0000
4) 453210 Printing ', 0 " � ;- 3 0.0000
5) 561720 Janitorial 04 - "" ..? 5 - : 0 0000
6) 541810 Radio and TV ads °',0 `y ° `: 1 0.0000
7) 811111 Outside vehicle repairs : ' ,:Nz..kr 0.0000
8) 441320 Tires a sa 0 n Yo > -: _; 0.0000
0.00% Overall
Combined Totals 0 38 availability
of DBEs
Table 3 - (Weight) x (Availability) = Weighted Base Figure
NAICS Weighted
Code Project Weight x Availability Base Figure
1) 485991 Dial A Ride contract 0.51232 x 0.00000
2) 45431 Fuel 0.34218 x 0.00000
3) 561720 Bus shelter cleaning 0.01025 x 0.00000
4) 453210 Printing 0.01281 x 0.00000
5) 561720 Janitorial 0.02562 x 0.00000
6) 541810 Radio and TV ads 0.03074 x 0.00000
7) 811111 Outside vehicle repairs 0.04611 x 0.00000
8) 441320 Tires 0.01998 x 0 00000
Total 0.0000
Expressed as a % ( *100) 0.00%
Rounded, Weighted Base Figure: 0%
Yakima DBE Program Page 14 of 60
Attachment 5
Demonstration of Good Faith Efforts
DISADVANTAGED BUSINESS ENTERPRISE (DBE) UTILIZATION
The undersigned bidder /offeror has satisfied the requirements of the bid specification in the following manner
(please check the appropriate space):
The bidder /offeror is committed to a minimum of % DBE utilization on this contract.
The bidder /offeror (if unable to meet the DBE goal of %) is committed to a minimum of % DBE
utilization on this contract a submits documentation demonstrating good faith efforts.
Name of bidder /offeror's firm:
State Registration No.
By
Signature Title
Yakima DBE Program Page 15 of 60
LETTER OF INTENT
Name of bidder /offeror's firm:
Address:
City: State: Zip:
Name of DBE firm:
Address:
City: State: Zip:
Telephone:
Description of work to be performed by DBE firm:
The bidder /offeror is committed to utilizing the above -named DBE firm for the work described above. The
estimated dollar value of this work is $
Affirmation
The above -named DBE firm affirms that it will perform the portion of the contract for the estimated dollar value as
stated above.
By
Signature Title
If the bidder /offeror does not receive award of the prime contract, any and all representations in this Letter of Intent
and Affirmation shall be null and void.
(Submit this page for each DBE subcontractor.)
Yakima DBE Program Page 16 of 60
Attachment 6
Regulations: 49 CFR Part 26
Subpart A— General
§ 26.1 What are the objectives of this part?
This part seeks to achieve several objectives:
(a) To ensure nondiscrimination in the award and administration of DOT - assisted contracts in the Department's
highway, transit, and airport financial assistance programs;
(b) To create a level playing field on which DBEs can compete fairly for DOT - assisted contracts;
(c) To ensure that the Department's DBE program is narrowly tailored in accordance with applicable law;
(d) To ensure that only firms that fully meet this part's eligibility standards are permitted to participate as DBEs;
(e) To help remove barriers to the participation of DBEs in DOT - assisted contracts;
(f) To assist the development of firms that can compete successfully in the marketplace outside the DBE program;
and
(g) To provide appropriate flexibility to recipients of Federal financial assistance in establishing and providing
opportunities for DBEs.
§ 26.3 To whom does this part apply?
(a) If you are a recipient of any of the following types of funds, this part applies to you:
(1) Federal -aid highway funds authorized under Titles I (other than Part B) and V of the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102 -240, 105 Stat. 1914, or Titles I, III, and V of the
Transportation Equity Act for the 21st Century (TEA -21), Pub. L. 105 -178, 112 Stat. 107.
(2) Federal transit funds authorized by Titles I, III, V and VI of ISTEA, Pub. L. 102 -240 or by Federal transit laws
in Title 49, U.S. Code, or Titles I, III, and V of the TEA -21, Pub. L. 105 -178.
(3) Airport funds authorized by 49 U.S C. 47101, et seq.
(b) [Reserved]
(c) If you are letting a contract, and that contract is to be performed entirely outside the United States, its territories
and possessions, Puerto Rico, Guam, or the Northern Marianas Islands, this part does not apply to the contract.
(d) If you are letting a contract in which DOT financial assistance does not participate, this part does not apply to the
contract.
§ 26.5 What do the terms used in this part mean?
Affiliation has the same meaning the term has in the Small Business Administration (SBA) regulations, 13 CFR part
121.
(1) Except as otherwise provided in 13 CFR part 121, concerns are affiliates of each other when, either directly or
indirectly:
Yakima DBE Program Page 17 of 60
(i) One concern controls or has the power to control the other; or
(ii) A third party or parties controls or has the power to control both; or
(iii) An identity of interest between or among parties exists such that affiliation may be found.
(2) In determining whether affiliation exists, it is necessary to consider all appropriate factors, including common
ownership, common management, and contractual relationships. 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), Eskimo, or Aleut blood, or a
combination of those bloodlines. The term includes, in the absence of proof of a minimum blood quantum, any
citizen whom a Native village or Native group regards as an Alaska Native if their father or mother is regarded as an
Alaska Native.
Alaska Native Corporation (ANC) means any Regional Corporation, Village Corporation, Urban Corporation, or
Group Corporation organized under the laws of the State of Alaska in accordance with the Alaska Native Claims
Settlement Act, as amended (43 U.S.C. 1601, et seq. ).
Compliance means that a recipient has correctly implemented the requirements of this part.
Contract means a legally binding relationship obligating a seller to furnish supplies or services (including, but not
limited to, construction and professional services) and the buyer to pay for them. For purposes of this part, a lease is
considered to be a contract.
Contractor means one who participates, through a contract or subcontract (at any tier), in a DOT - assisted highway,
transit, or airport program.
Department or DOT means the U.S. Department of Transportation, including the Office of the Secretary, the Federal
Highway Administration (FHWA), the Federal Transit Administration (FTA), and the Federal Aviation
Administration (FAA).
Disadvantaged business enterprise or DBE means a for - profit small business concern—
(1) That is at least 51 percent owned by one or more individuals who are both socially and economically
disadvantaged or, in the case of a corporation, in which 51 percent of the stock is owned by one or more such
individuals; and
(2) Whose management and daily business operations are controlled by one or more of the socially and
economically disadvantaged individuals who own it.
DOT - assisted contract means any contract between a recipient and a contractor (at any tier) funded in whole or in
part with DOT financial assistance, including letters of credit or loan guarantees, except a contract solely for the
purchase of land.
DOT /SBA Memorandum of Understanding or MOU, refers to the agreement signed on November 23, 1999, between
the Department of Transportation (DOT) and the Small Business Administration (SBA) streamlining certification
procedures for participation in SBA's 8(a) Business Development (8(a) BD) and Small Disadvantaged Business
(SDB) programs, and DOT's Disadvantaged Business Enterprise (DBE) program for small and disadvantaged
businesses.
Good faith efforts means efforts to achieve a DBE goal or other requirement of this part which, by their scope,
intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirement.
Home state means the state in which a DBE firm or applicant for DBE certification maintains its principal place of
business.
Immediate family member means father, mother, husband, wife, son, daughter, brother, sister, grandmother,
grandfather, grandson, granddaughter, mother -in -law, or father -in -law.
Indian tribe means any Indian tribe, band, nation, or other organized group or community of Indians, including any
ANC, which is recognized as eligible for the special programs and services provided by the United States to Indians
Yakima DBE Program Page 18 of 60
because of their status as Indians, or is recognized as such by the State in which the tribe, band, nation, group, or
community resides. See definition of "tribally -owned concern" in this section.
Joint venture means an association of a DBE firm and one or more other firms to carry out a single, for - profit
business enterprise, for which the parties combine their property, capital, efforts, skills and knowledge, and in which
the DBE is responsible for a distinct, clearly defined portion of the work of the contract and whose share in the
capital contribution, control, management, risks, and profits of the joint venture are commensurate with its
ownership interest.
Native Hawaiian means any individual whose ancestors were natives, prior to 1778, of the area which now
comprises the State of Hawaii.
Native Hawaiian Organization means any community service organization serving Native Hawaiians in the State of
Hawaii which is a not - for - profit organization chartered by the State of Hawaii, is controlled by Native Hawaiians,
and whose business activities will principally benefit such Native Hawaiians.
Noncompliance means that a recipient has not correctly implemented the requirements of this part.
Operating Administration or OA means any of the following parts of DOT: the Federal Aviation Administration
(FAA), Federal Highway Administration (FHWA), and Federal Transit Administration (FTA). The "Administrator"
of an operating administration includes his or her designees.
Personal net worth means the net value of the assets of an individual remaining after total liabilities are deducted.
An individual's personal net worth does not include The individual's ownership interest in an applicant or
participating DBE firm; or the individual's equity in his or her primary place of residence. An individual's personal
net worth includes only his or her own share of assets held jointly or as community property with the individual's
spouse.
Primary industry classification means the North American Industrial Classification System (NAICS) designation
which best describes the primary business of a firm. The NAICS is described in the North American Industry
Classification Manual — United States, 1997 which is available from the National Technical Information Service,
5285 Port Royal Road, Springfield, VA, 22161; by calling 1 (800) 553 -6847; or via the Internet at:
http://www.ntis.gov/productinaics.htm.
Primary recipient means a recipient which receives DOT financial assistance and passes some or all of it on to
another recipient.
Principal place of business means the business location where the individuals who manage the firm's day -to -day
operations spend most working hours and where top management's business records are kept. 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.
Race - conscious measure or program is one that is focused specifically on assisting only DBEs, including women -
owned DBEs.
Race - neutral measure or program is one that is, or can be, used to assist all small businesses. For the purposes of
this part, race- neutral includes gender- neutrality.
Recipient is any entity, public or private, to which DOT financial assistance is extended, whether directly or through
another recipient, through the programs of the FAA, FHWA, or FTA, or who has applied for such assistance.
Secretary means the Secretary of Transportation or his/her designee.
Set -aside means a contracting practice restricting eligibility for the competitive award of a contract solely to DBE
firms.
Small Business Administration or SBA means the United States Small Business Administration.
SBA certified firm refers to firms that have a current, valid certification from or recognized by the SBA under the
8(a) BD or SDB programs.
Yakima DBE Program Page 19 of 60
Small business concern means, with respect to firms seeking to participate as DBEs in DOT - assisted contracts, a
small business concern as defined pursuant to section 3 of the Small Business Act and Small Business
Administration regulations implementing it (13 CFR part 121) that also does not exceed the cap on average annual
gross receipts specified in §26.65(b)
Socially and economically disadvantaged individual means any individual who is a citizen (or lawfully admitted
permanent resident) of the United States and who is—
(1) Any individual who a recipient finds to be a socially and economically disadvantaged individual on a case -by-
case basis.
(2) Any individual in the following groups, members of which are rebuttably presumed to be socially and
economically disadvantaged:
(i) `Black Americans," which includes persons having origins in any of the Black racial groups of Africa,
(ii) "Hispanic Americans," which includes persons of Mexican, Puerto Rican, Cuban, Dominican, Central or South
American, or other Spanish or Portuguese culture or origin, regardless of race;
(iii) "Native Americans," which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;
(iv) "Asian- Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea,
Burma (Myanmar), Vietnam, Laos, Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines, Brunei,
Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Republic of Palau), the Commonwealth of the
Northern Marianas Islands, Macao, Fiji, Tonga, Kiribati, Juvalu, Nauru, Federated States of Micronesia, or Hong
Kong;
(v) "Subcontinent Asian Americans," which includes persons whose origins are from India, Pakistan, Bangladesh,
Bhutan, the Maldives Islands, Nepal or Sri Lanka;
(vi) Women;
(vii) Any additional groups whose members are designated as socially and economically disadvantaged by the SBA,
at such time as the SBA designation becomes effective.
Tribally -owned concern means any concern at least 51 percent owned by an Indian tribe as defined in this section.
You refers to a recipient, unless a statement in the text of this part or the context requires otherwise (i.e., `You must
do XYZ' means that recipients must do XYZ).
[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 FR 35553, June 16, 2003; 76 FR 5096,
Jan. 28, 2011]
§ 26.7 What discriminatory actions are forbidden?
(a) You must never exclude any person from participation in, deny any person the benefits of, or otherwise
discriminate against anyone in connection with the award and performance of any contract covered by this part on
the basis of race, color, sex, or national origin.
(b) In administering your DBE program, you must not, directly or through contractual or other arrangements, use
criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of
the objectives of the program with respect to individuals of a particular race, color, sex, or national origin.
§ 26.9 How does the Department issue guidance and interpretations under this part?
(a) Only guidance and interpretations (including interpretations set forth in certification appeal decisions) consistent
with this part 26 and issued after March 4, 1999 express the official positions and views of the Department of
Transportation or any of its operating administrations.
(b) The Secretary of Transportation, Office of the Secretary of Transportation, FHWA, FTA, and FAA may issue
written interpretations of or written guidance concerning this part. Written interpretations and guidance are valid,
and express the official positions and views of the Department of Transportation or any of its operating
Yakima DBE Program Page 20 of 60
administrations, only if they are issued over the signature of the Secretary of Transportation or if they contain the
following statement:
The General Counsel of the Department of Transportation has reviewed this document and approved it as consistent
with the language and intent of 49 CFR part 26.
[72 FR 15617, Apr 2, 2007]
§ 26.11 What records do recipients keep and report?
(a) You must transmit the Uniform Report of DBE Awards or Commitments and Payments, found in Appendix B to
this part, at the intervals stated on the form.
(b) You must continue to provide data about your DBE program to the Department as directed by DOT operating
administrations.
(c) You must create and maintain a bidders list.
(1) The purpose of this list is to provide you as accurate data as possible about the universe of DBE and non -DBE
contractors and subcontractors who seek to work on your Federally- assisted contracts for use in helping you set your
overall goals.
(2) You must obtain the following information about DBE and non -DBE contractors and subcontractors who seek to
work on your Federally- assisted contracts:
(i) Firm name;
(ii) Firm address;
(iii) Firm's status as a DBE or non -DBE;
(iv) Age of the firm; and
(v) The annual gross receipts of the firm. You may obtain this information by asking each firm to indicate into what
gross receipts bracket they fit ( e.g., less than $500,000; $500,000 —$1 million; $1 -2 million; $2 -5 million; etc.)
rather than requesting an exact figure from the firm.
(3) You may acquire the information for your bidders list in a variety of ways. For example, you can collect the data
from all bidders, before or after the bid due date. You can conduct a survey that will result in statistically sound
estimate of the universe of DBE and non -DBE contractors and subcontractors who seek to work on your Federally -
assisted contracts. You may combine different data collection approaches ( e.g., collect name and address
information from all bidders, while conducting a survey with respect to age and gross receipts information).
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 76 FR 5096, Jan. 28, 2011]
§ 26.13 What assurances must recipients and contractors make?
(a) Each financial assistance agreement you sign with a DOT operating administration (or a primary recipient) must
include the following assurance:
The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance
of any DOT - assisted contract or in the administration of its DBE program or the requirements of 49 CFR part 26.
The recipient shall take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the
award and administration of DOT - assisted contracts. The recipient's DBE program, as required by 49 CFR part 26
and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal
obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the
recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for
Yakima DBE Program Page 21 of 60
under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the
Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq. ).
(b) Each contract you sign with a contractor (and each subcontract the prime contractor signs with a subcontractor)
must include the following assurance:
The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or
sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in
the award and administration of DOT - assisted contracts. Failure by the contractor to carry out these requirements is
a material breach of this contract, which may result in the termination of this contract or such other remedy as the
recipient deems appropriate.
§ 26.15 How can recipients apply for exemptions or waivers?
(a) You can apply for an exemption from any provision of this part. To apply, you must request the exemption in
writing from the Office of the Secretary of Transportation, FHWA, FTA, or FAA. The Secretary will grant the
request only if it documents special or exceptional circumstances, not likely to be generally applicable, and not
contemplated in connection with the rulemaking that established this part, that make your compliance with a specific
provision of this part impractical. You must agree to take any steps that the Department specifies to comply with the
intent of the provision from which an exemption is granted. The Secretary will issue a written response to all
exemption requests.
(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. Program
waivers are for the purpose of authorizing you to operate a DBE program that achieves the objectives of this part by
means that may differ from one or more of the requirements of Subpart B or C of this part. To receive a program
waiver, you must follow these procedures:
(1) You must apply through the concerned operating administration. The application must include a specific
program proposal and address how you will meet the criteria of paragraph (b)(2) of this section. Before submitting
your application, you must have had public participation in developing your proposal, including consultation with
the DBE community and at least one public hearing. Your application must include a summary of the public
participation process and the information gathered through it.
(2) Your application must show that —
(i) There is a reasonable basis to conclude that you could achieve a level of DBE participation consistent with the
objectives of this part using different or innovative means other than those that are provided in subpart B or C of this
part;
(ii) Conditions in your jurisdiction are appropriate for implementing the proposal;
(iii) Your proposal would prevent discrimination against any individual or group in access to contracting
opportunities or other benefits of the program; and
(iv) Your proposal is consistent with applicable law and program requirements of the concerned operating
administration's financial assistance program.
(3) The Secretary has the authority to approve your application. If the Secretary grants your application, you may
administer your DBE program as provided in your proposal, subject to the following conditions:
(i) DBE eligibility is determined as provided in subparts D and E of this part, and DBE participation is counted as
provided in §26.49;
(ii) Your level of DBE participation continues to be consistent with the objectives of this part;
(iii) There is a reasonable limitation on the duration of your modified program; and
Yakima DBE Program Page 22 of 60
(iv) Any other conditions the Secretary makes on the grant of the waiver.
(4) The Secretary may end a program waiver at any time and require you to comply with this part's provisions. The
Secretary may also extend the waiver, if he or she determines that all requirements of paragraphs (b)(2) and (3) of
this section continue to be met. Any such extension shall be for no longer than period originally set for the duration
of the program.
Subpart B— Administrative Requirements for DBE Programs for Federally- Assisted
Contracting
§ 26.21 Who must have a DBE program?
(a) If you are in one of these categories and let DOT - assisted contracts, you must have a DBE program meeting the
requirements of this part:
(1) All FHWA recipients receiving funds authorized by a statute to which this part applies;
(2) FTA recipients receiving planning, capital and/or operating assistance who will award prime contracts
(excluding transit vehicle purchases) exceeding $250,000 in VITA funds in a Federal fiscal year;
(3) FAA recipients receiving grants for airport planning or development who will award prime contracts exceeding
$250,000 in FAA funds in a Federal fiscal year.
(b)(1) You must submit a DBE program conforming to this part by August 31, 1999 to the concerned operating
administration (OA). Once the OA has approved your program, the approval counts for all of your DOT - assisted
programs (except that goals are reviewed by the particular operating administration that provides funding for your
DOT - assisted contracts).
(2) You do not have to submit regular updates of your DBE programs, as long as you remain in compliance.
However, you must submit significant changes in the program for approval.
(c) You are not eligible to receive DOT financial assistance unless DOT has approved your DBE program and you
are in compliance with it and this part. You must continue to carry out your program until all funds from DOT
financial assistance have been expended.
[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000]
§ 26.23 What is the requirement for a policy statement?
You must issue a signed and dated policy statement that expresses your commitment to your DBE program, states its
objectives, and outlines responsibilities for its implementation. You must circulate the statement throughout your
organization and to the DBE and non -DBE business communities that perform work on your DOT - assisted
contracts.
§ 26.25 What is the requirement for a liaison officer?
You must have a DBE liaison officer, who shall have direct, independent access to your Chief Executive Officer
concerning DBE program matters. The liaison officer shall be responsible for implementing all aspects of your DBE
program. You must also have adequate staff to administer the program in compliance with this part.
§ 26.27 What efforts must recipients make concerning DBE financial institutions?
You must thoroughly investigate the full extent of services offered by financial institutions owned and controlled by
socially and economically disadvantaged individuals in your community and make reasonable efforts to use these
institutions. You must also encourage prime contractors to use such institutions.
Yakima DBE Program Page 23 of 60
§ 26.29 What prompt payment mechanisms must recipients have?
(a) You must establish, as part of your DBE program, a contract clause to require prime contractors to pay
subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment you
make to the prime contractor.
(b) You must ensure prompt and full payment of retainage from the prime contractor to the subcontractor within 30
days after the subcontractor's work is satisfactorily completed. You must use one of the following methods to
comply with this requirement:
(1) You may decline to hold retainage from prime contractors and prohibit prime contractors from holding retainage
from subcontractors.
(2) You may decline to hold retainage from prime contractors and require a contract clause obligating prime
contractors to make prompt and full payment of any retainage kept by prime contractor to the subcontractor within
30 days after the subcontractor's work is satisfactorily completed.
(3) You may hold retainage from prime contractors and provide for prompt and regular incremental acceptances of
portions of the prime contract, pay retainage to prime contractors based on these acceptances, and require a contract
clause obligating the prime contractor to pay all retainage owed to the subcontractor for satisfactory completion of
the accepted work within 30 days after your payment to the prime contractor.
(c) For purposes of this section, a subcontractor's work is satisfactorily completed when all the tasks called for in the
subcontract have been accomplished and documented as required by the recipient. When a recipient has made an
incremental acceptance of a portion of a prime contract, the work of a subcontractor covered by that acceptance is
deemed to be satisfactorily completed.
(d) Your DBE program must provide appropriate means to enforce the requirements of this section. These means
may include appropriate penalties for failure to comply, the terms and conditions of which you set. Your program
may also provide that any delay or postponement of payment among the parties may take place only for good cause,
with your prior written approval.
(e) You may also establish, as part of your DBE program, any of the following additional mechanisms to ensure
prompt payment:
(1) A contract clause that requires prime contractors to include in their subcontracts language providing that prime
contractors and subcontractors will use appropriate alternative dispute resolution mechanisms to resolve payment
disputes. You may specify the nature of such mechanisms.
(2) A contract clause providing that the prime contractor will not be reimbursed for work performed by
subcontractors unless and until the prime contractor ensures that the subcontractors are promptly paid for the work
they have performed.
(3) Other mechanisms, consistent with this part and applicable state and local law, to ensure that DBEs and other
contractors are fully and promptly paid.
[68 FR 35553, June 16, 2003]
§ 2631 What information must you include in your DBE directory?
(a) In the directory required under §26.81(g) of this Part, you must list all firms eligible to participate as DBEs in
your program. In the listing for each firm, you must include its address, phone number, and the types of work the
firm has been certified to perform as a DBE.
(b) You must list each type of work for which a firm is eligible to be certified by using the most specific NAICS
code available to describe each type of work. You must make any changes to your current directory entries
necessary to meet the requirement of this paragraph (a) by August 26, 2011.
[76 FR 5096, Jan. 28, 2011]
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§ 26.33 What steps must a recipient take to address overconcentration of DBEs in certain types of work?
(a) If you determine that DBE firms are so overconcentrated in a certain type of work as to unduly burden the
opportunity of non -DBE firms to participate in this type of work, you must devise appropriate measures to address
this overconcentration.
(b) These measures may include the use of incentives, technical assistance, business development programs, mentor -
protege programs, and other appropriate measures designed to assist DBEs in performing work outside of the
specific field in which you have determined that non -DBEs are unduly burdened. You may also consider varying
your use of contract goals, to the extent consistent with §26.51, to unsure that non -DBEs are not unfairly prevented
from competing for subcontracts.
(c) You must obtain the approval of the concerned DOT operating administration for your determination of
overconcentration and the measures you devise to address it. Once approved, the measures become part of your
DBE program.
§ 26.35 What role do business development and mentor - protege programs have in the DBE program?
(a) You may or, if an operating administration directs you to, you must establish a DBE business development
program (BDP) 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. See
Appendix C of this part for guidance on administering BDP programs.
(b) As part of a BDP or separately, you may establish a "mentor- protege" program, in which another DBE or non -
DBE firm is the principal source of business development assistance to a DBE firm.
(1) Only firms you have certified as DBEs before they are proposed for participation in a mentor - protege program
are eligible to participate in the mentor - protege program.
(2) During the course of the mentor - protege relationship, you must:
(i) Not award DBE credit to a non -DBE mentor firm for using its own protege firm for more than one half of its goal
on any contract let by the recipient; and
(ii) Not award DBE credit to a non -DBE mentor firm for using its own protege firm for more than every other
contract performed by the protege firm.
(3) For purposes of making determinations of business size under this part, you must not treat protege firms as
affiliates of mentor firms, when both firms are participating under an approved mentor - protege program. See
Appendix D of this part for guidance concerning the operation of mentor - protege programs.
(c) Your BDPs and mentor - protege programs must be approved by the concerned operating administration before
you implement them. Once approved, they become part of your DBE program.
§ 26.37 What are a recipient's responsibilities for monitoring the performance of other program participants?
(a) You must implement appropriate mechanisms to ensure compliance with the part's requirements by all program
participants (e.g., applying legal and contract remedies available under Federal, state and local law). You must set
forth these mechanisms in your DBE program.
(b) Your DBE program must also include a monitoring and enforcement mechanism to ensure that work committed
to DBEs at contract award or subsequently ( e.g., as the result of modification to the contract) is actually performed
by the DBEs to which the work was committed. This mechanism must include a written certification that you have
reviewed contracting records and monitored work sites in your state for this purpose. The monitoring to which this
paragraph refers may be conducted in conjunction with monitoring of contract performance for other purposes ( e.g.,
close -out reviews for a contract).
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(c) This mechanism must provide for a running tally of actual DBE ( e.g., payments actually made to
DBE firms), including a means of comparing these attainments to commitments. In your reports of DBE
participation to the Department, you must display both commitments and attainments.
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003; 76 FR 5097,
Jan. 28, 2011]
§ 2639 Fostering small business participation.
(a) Your DBE program must include an element to structure contracting requirements to facilitate competition by
small business concerns, taking all reasonable steps to eliminate obstacles to their participation, including
unnecessary and unjustified bundling of contract requirements that may preclude small business participation in
procurements as prime contractors or subcontractors.
(b) This element must be submitted to the appropriate DOT operating administration for approval as a part of your
DBE program by February 28, 2012. As part of this program element you may include, but are not limited to, the
following strategies:
(1) Establishing a race - neutral small business set -aside for prime contracts under a stated amount ( e.g., $1 million).
(2) In multi -year design -build contracts or other large contracts ( e.g., for "megaprojects ") requiring bidders on the
prime contract to specify elements of the contract or specific subcontracts that are of a size that small businesses,
including DBEs, can reasonably perform.
(3) On prime contracts not having DBE contract goals, requiring the prime contractor to provide subcontracting
opportunities of a size that small businesses, including DBEs, can reasonably perform, rather than self - performing
all the work involved.
(4) Identifying alternative acquisition strategies and structuring procurements to facilitate the ability of consortia or
joint ventures consisting of small businesses, including DBEs, to compete for and perform prime contracts.
(5) To meet the portion of your overall goal you project to meet through race - neutral measures, ensuring that a
reasonable number of prime contracts are of a size that small businesses, including DBEs, can reasonably perform.
(c) You must actively implement your program elements to foster small business participation. Doing so is a
requirement of good faith implementation of your DBE program.
[76 FR 5097, Jan. 28, 2011]
Subpart C Goals, Good Faith Efforts, and Counting
§ 26.41 What is the role of the statutory 10 percent goal in this program?
(a) The statutes authorizing this program provide that, except to the extent the Secretary determines otherwise, not
less than 10 percent of the authorized funds are to be expended with DBEs.
(b) This 10 percent goal is an aspirational goal at the national level, which the Department uses as a tool in
evaluating and monitoring DBEs' opportunities to participate in DOT - assisted contracts.
(c) The national 10 percent goal does not authorize or require recipients to set overall or contract goals at the 10
percent level, or any other particular level, or to take any special administrative steps if their goals are above or
below 10 percent.
§ 26.43 Can recipients use set - asides or quotas as part of this program?
(a) You are not permitted to use quotas for DBEs on DOT - assisted contracts subject to this part.
Yakima DBE Program Page 26 of 60
(b) You may not set -aside contracts for DBEs on DOT - assisted contracts subject to this part, except that, in limited
and extreme circumstances, you may use set - asides when no other method could be reasonably expected to redress
egregious instances of discrimination.
§ 26.45 How do recipients set overall goals?
(a)(1) Except as provided in paragraph (a)(2) of this section, you must set an overall goal for DBE participation in
your DOT - assisted contracts.
(2) If you are a FTA or FAA recipient who reasonably anticipates awarding (excluding transit vehicle purchases)
$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.
(b) Your overall goal must be based on demonstrable evidence of the availability of ready, willing and able DBEs
relative to all businesses ready, willing and able to participate on your DOT - assisted contracts (hereafter, the
"relative availability of DBEs "). The goal must reflect your determination of the level of DBE participation you
would expect absent the effects of discrimination. You cannot simply rely on either the 10 percent national goal,
your previous overall goal or past DBE participation rates in your program without reference to the relative
availability of DBEs in your market.
(c) Step 1. You must begin your goal setting process by determining a base figure for the relative availability of
DBEs. The following are examples of approaches that you may take toward determining a base figure. These
examples are provided as a starting point for your goal setting process. Any percentage figure derived from one of
these examples should be considered a basis from which you begin when examining all evidence available in your
jurisdiction. These examples are not intended as an exhaustive list. Other methods or combinations of methods to
determine a base figure may be used, subject to approval by the concerned operating administration.
(1) Use DBE Directories and Census Bureau Data. Determine the number of ready, willing and able DBEs in your
market from your DBE directory. Using the Census Bureau's County Business Pattern (CBP) data base, determine
the number of all ready, willing and able businesses available in your market that perform work in the same NAICS
codes. (Information about the CBP data base may be obtained from the Census Bureau at their web site,
www.census.gov /epcdlcbp /view /cbpview.html. ) Divide the number of DBEs by the number of all businesses to
derive a base figure for the relative availability of DBEs in your market.
(2) Use a bidders list. Determine the number of DBEs that have bid or quoted on your DOT - assisted prime contracts
or subcontracts in the previous year. Determine the number of all businesses that have bid or quoted on prime or
subcontracts in the same time period. Divide the number of DBE bidders and quoters by the number for all
businesses to derive a base figure for the relative availability of DBEs in your market.
(3) Use data from a disparity study. Use a percentage figure derived from data in a valid, applicable disparity study.
(4) Use the goal of another DOT recipient. If another DOT recipient in the same, or substantially similar, market has
set an overall goal in compliance with this rule, you may use that goal as a base figure for your goal.
(5) Alternative methods. You may use other methods to determine a base figure for your overall goal. Any
methodology you choose must be based on demonstrable evidence of local market conditions and be designed to
ultimately attain a goal that is rationally related to the relative availability of DBEs in your market.
(d) Step 2. Once you have calculated a base figure, you must examine all of the evidence available in your
jurisdiction to determine what adjustment, if any, is needed to the base figure in order to arrive at your overall goal.
(1) There are many types of evidence that must be considered when adjusting the base figure. These include:
Yakima DBE Program Page 27 of 60
(i) The current capacity of DBEs to perform work in your DOT - assisted contracting program, as measured by the
volume of work DBEs have performed in recent years;
(ii) Evidence from disparity studies conducted anywhere within your jurisdiction, to the extent it is not already
accounted for in your base figure; and
(iii) If your base figure is the goal of another recipient, you must adjust it for differences in your local market and
your contracting program.
(2) If available, you must consider evidence from related fields that affect the opportunities for DBEs to form, grow
and compete. These include, but are not limited to:
(i) Statistical disparities in the ability of DBEs to get the financing, bonding and insurance required to participate in
your program;
(ii) Data on employment, self - employment, education, training and union apprenticeship programs, to the extent you
can relate it to the opportunities for DBEs to perform in your program.
(3) If you attempt to make an adjustment to your base figure to account for the continuing effects of past
discrimination (often called the "but for" factor) or the effects of an ongoing DBE program, the adjustment must be
based on demonstrable evidence that is logically and directly related to the effect for which the adjustment is sought.
(e) Once you have determined a percentage figure in accordance with paragraphs (c) and (d) of this section, you
should express your overall goal as follows:
(1) If you are an FHWA recipient, as a percentage of all Federal -aid highway funds you will expend in FHWA-
assisted contracts in the forthcoming three fiscal years.
(2) If you are an FTA or FAA recipient, as a percentage of all FT or FAA funds (exclusive of FTA funds to be used
for the purchase of transit vehicles) that you will expend in FTA or FAA- assisted contracts in the three forthcoming
fiscal years.
(3) In appropriate cases, the FHWA, FTA or FAA Administrator may permit or require you to express your overall
goal as a percentage of funds for a particular grant or project or group of grants and/or projects. Like other overall
goals, a project goal may be adjusted to reflect changed circumstances, with the concurrence of the appropriate
operating administration.
(i) A project goal is an overall goal, and must meet all the substantive and procedural requirements of this section
pertaining to overall goals.
(ii) A project goal covers the entire length of the project to which it applies.
(iii) The project goal should include a projection of the DBE participation anticipated to be obtained during each
fiscal year covered by the project goal.
(iv) The funds for the project to which the project goal pertains are separated from the base from which your regular
overall goal, applicable to contracts not part of the project covered by a project goal, is calculated.
(0(1)(i) If you set your overall goal on a fiscal year basis, you must submit it to the applicable DOT operating
administration by August 1 at three -year intervals, based on a schedule established by the FHWA, FTA, or FAA, as
applicable, and posted on that agency's Web site.
(ii) You may adjust your three -year overall goal during the three -year period to which it applies, in order to reflect
changed circumstances. You must submit such an adjustment to the concerned operating administration for review
and approval.
(iii) The operating administration may direct you to undertake a review of your goal if necessary to ensure that the
goal continues to fit your circumstances appropriately
Yakima DBE Program Page 28 of 60
(iv) While you are required to submit an overall goal to FHWA, FTA, or FAA only every three years, the overall
goal and the provisions of Sec. 26.47(c) apply to each year during that three -year period.
(v) You may make, for informational purposes, projections of your expected DBE achievements during each of the
three years covered by your overall goal. However, it is the overall goal itself, and not these informational
projections, to which the provisions of section 26.47(c) of this part apply.
(2) If you are a recipient and set your overall goal on a project or grant basis as provided in paragraph (e)(3) of this
section, you must submit the goal for review at a time determined by the FHWA, FTA or FAA Administrator, as
applicable.
(3) You must include with your overall goal submission a description of the methodology you used to establish the
goal, including your base figure and the evidence with which it was calculated, and the adjustments you made to the
base figure and the evidence you relied on for the adjustments. You should also include a summary listing of the
relevant available evidence in your jurisdiction and, where applicable, an explanation of why you did not use that
evidence to adjust your base figure. You must also include your projection of the portions of the overall goal you
expect to meet through race - neutral and race - conscious measures, respectively ( see 26.51(c)).
(4) You are not required to obtain prior operating administration concurrence with your overall goal. However, if the
operating administration's review suggests that your overall goal has not been correctly calculated, or that your
method for calculating goals is inadequate, the operating administration may, after consulting with you, adjust your
overall goal or require that you do so The adjusted overall goal is binding on you.
(5) If you need additional time to collect data or take other steps to develop an approach to setting overall goals, you
may request the approval of the concerned operating administration for an interim goal and/or goal- setting
mechanism. Such a mechanism must:
(i) Reflect the relative availability of DBEs in your local market to the maximum extent feasible given the data
available to you; and
(ii) Avoid imposing undue burdens on non -DBEs.
(6) Timely submission and operating administration approval of your overall goal is a condition of eligibility for
DOT financial assistance.
(7) If you fail to establish and implement goals as provided in this section, you are not in compliance with this part.
If you establish and implement goals in a way different from that provided in this part, you are not in compliance
with this part. If you fail to comply with this requirement, you are not eligible to receive DOT financial assistance.
(g) In establishing an overall goal, you must provide for public participation. This public participation must include:
(1) Consultation with minority, women's and general contractor groups, community organizations, and other
officials or organizations which could be expected to have information concerning the availability of disadvantaged
and non - disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and your efforts to
establish a level playing field for the participation of DBEs.
(2) A published notice announcing your proposed overall goal, informing the public that the proposed goal and its
rationale are available for inspection during normal business hours at your principal office for 30 days following the
date of the notice, and informing the public that you and the Department will accept comments on the goals for 45
days from the date of the notice. The notice must include addresses to which comments may be sent, and you must
publish it in general circulation media and available minority- focused media and trade association publications.
(h) Your overall goals must provide for participation by all certified DBEs and must not be subdivided into group -
specific goals.
[64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000; 68 FR 35553,
June 16, 2003; 75 FR 5536, Feb. 3, 2010; 76 FR 5097, Jan. 28, 2011]
Yakima DBE Program Page 29 of 60
§ 26.47 Can recipients be penalized for failing to meet overall goals?
(a) You cannot be penalized, or treated by the Department as being in noncompliance with this rule, because your
DBE participation falls short of your overall goal, unless you have failed to administer your program in good faith.
(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.
(c) If the awards and commitments shown on your Uniform Report of Awards or Commitments and Payments at the
end of any fiscal year are less than the overall goal applicable to that fiscal year, you must do the following in order
to be regarded by the Department as implementing your DBE program in good faith.
(1) Analyze in detail the reasons for the difference between the overall goal and your awards and commitments in
that fiscal year;
(2) Establish specific steps and milestones to correct the problems you have identified in your analysis and to enable
you to meet fully your goal for the new fiscal year;
(3)(i) If you are a state highway agency; one of the 50 largest transit authorities as determined by the FTA; or an
Operational Evolution Partnership Plan airport or other airport designated by the FAA, you must submit, within 90
days of the end of the fiscal year, the analysis and corrective actions developed under paragraphs (c)(1) and (2) of
this section to the appropriate operating administration for approval. If the operating administration approves the
report, you will be regarded as complying with the requirements of this section for the remainder of the fiscal year.
(ii) As a transit authority or airport not meeting the criteria of paragraph (c)(3)(i) of this section, you must retain
analysis and corrective actions in your records for three years and make it available to FTA or FAA on request for
their review.
(4) FHWA, FTA, or FAA may impose conditions on the recipient as part of its approval of the recipient's analysis
and corrective actions including, but not limited to, modifications to your overall goal methodology, changes in your
race - conscious /race- neutral split, or the introduction of additional race - neutral or race - conscious measures.
(5) You may be regarded as being in noncompliance with this Part, and therefore subject to the remedies in §26.103
or §26.105 of this part and other applicable regulations, for failing to implement your DBE program in good faith if
any of the following things occur:
(i) You do not submit your analysis and corrective actions to FHWA, FTA, or FAA in a timely manner as required
under paragraph (c)(3) of this section;
(ii) FHWA, FTA, or FAA disapproves your analysis or corrective actions; or
(iii) You do not fully implement the corrective actions to which you have committed or conditions that FHWA,
FTA, or FAA has imposed following review of your analysis and corrective actions.
(d) If, as recipient, your Uniform Report of DBE Awards or Commitments and Payments or other information
coming to the attention of FTA, FHWA, or FAA, demonstrates that current trends make it unlikely that you will
achieve DBE awards and commitments that would be necessary to allow you to meet your overall goal at the end of
the fiscal year, FHWA, FTA, or FAA, as applicable, may require you to make further good faith efforts, such as by
modifying your race - conscious /race - neutral split or introducing additional race - neutral or race - conscious measures
for the remainder of the fiscal year.
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011]
§ 26.49 How are overall goals established for transit vehicle manufacturers?
(a) If you are an FTA recipient, you must require in your DBE program that each transit vehicle manufacturer, as a
condition of being authorized to bid or propose on FTA- assisted transit vehicle procurements, certify that it has
complied with the requirements of this section. You do not include FTA assistance used in transit vehicle
procurements in the base amount from which your overall goal is calculated.
Yakima DBE Program Page 30 of 60
(b) If you are a transit vehicle manufacturer, you must establish and submit for FTA's approval an annual overall
percentage goal. In setting your overall goal, you should be guided, to the extent applicable, by the principles
underlying §26 45. The base from which you calculate this goal is the amount of FTA financial assistance included
in transit vehicle contracts you will perform during the fiscal year in question. You must exclude from this base
funds attributable to work performed outside the United States and its territories, possessions, and commonwealths.
The requirements and procedures of this part with respect to submission and approval of overall goals apply to you
as they do to recipients.
(c) As a transit vehicle manufacturer, you may make the certification required by this section if you have submitted
the goal this section requires and FTA has approved it or not disapproved it.
(d) As a recipient, you may, with FTA approval, establish project- specific goals for DBE participation in the
procurement of transit vehicles in lieu of complying through the procedures of this section.
(e) If you are an FHWA or FAA recipient, you may, with FHWA or FAA approval, use the procedures of this
section with respect to procurements of vehicles or specialized equipment. If you choose to do so, then the
manufacturers of this equipment must meet the same requirements (including goal approval by FHWA or FAA) as
transit vehicle manufacturers must meet in FTA- assisted procurements.
§ 26.51 What means do recipients use to meet overall goals?
(a) You must meet the maximum feasible portion of your overall goal by using race - neutral means of facilitating
DBE participation. Race - neutral DBE participation includes any time a DBE wins a prime contract through
customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a
DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor that did not consider its DBE
status in making the award (e.g., a prime contractor that uses a strict low bid system to award subcontracts).
(b) Race - neutral means include, but are not limited to, the following:
(1) Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in
ways that facilitate participation by DBEs and other small businesses and by making contracts more accessible to
small businesses, by means such as those provided under §26.39 of this part.
(2) Providing assistance in overcoming limitations such as inability to obtain bonding or financing (e.g., by such
means as simplifying the bonding process, reducing bonding requirements, eliminating the impact of surety costs
from bids, and providing services to help DBEs, and other small businesses, obtain bonding and financing),
(3) Providing technical assistance and other services;
(4) Carrying out information and communications programs on contracting procedures and specific contract
opportunities (e.g., ensuring the inclusion of DBEs, and other small businesses, on recipient mailing lists for bidders;
ensuring the dissemination to bidders on prime contracts of lists of potential subcontractors; provision of
information in languages other than English, where appropriate);
(5) Implementing a supportive services program to develop and improve immediate and long -term business
management, record keeping, and financial and accounting capability for DBEs and other small businesses;
(6) Providing services to help DBEs, and other small businesses, improve long -term development, increase
opportunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve
eventual self- sufficiency;
(7) Establishing a program to assist new, start-up firms, particularly in fields in which DBE participation has
historically been low;
(8) Ensuring distribution of your DBE directory, through print and electronic means, to the widest feasible universe
of potential prime contractors; and
(9) Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and
conduct business through electronic media.
Yakima DBE Program Page 31 of 60
(c) Each time you submit your overall goal for review by the concerned operating administration, you must also
submit your projection of the portion of the goal that you expect to meet through race - neutral means and your basis
for that projection. This projection is subject to approval by the concerned operating administration, in conjunction
with its review of your overall goal.
(d) You must establish contract goals to meet any portion of your overall goal you do not project being able to meet
using race - neutral means.
(e) The following provisions apply to the use of contract goals:
(1) You may use contract goals only on those DOT - assisted contracts that have subcontracting possibilities.
(2) You are not required to set a contract goal on every DOT - assisted contract. You are not required to set each
contract goal at the same percentage level as the overall goal. The goal for a specific contract may be higher or
lower than that percentage level of the overall goal, depending on such factors as the type of work involved, the
location of the work, and the availability of DBEs for the work of the particular contract. However, over the period
covered by your overall goal, you must set contract goals so that they will cumulatively result in meeting any
portion of your overall goal you do not project being able to meet through the use of race- neutral means.
(3) Operating administration approval of each contract goal is not necessarily required. However, operating
administrations may review and approve or disapprove any contract goal you establish.
(4) Your contract goals must provide for participation by all certified DBEs and must not be subdivided into group -
specific goals.
(f) To ensure that your DBE program continues to be narrowly tailored to overcome the effects of discrimination,
you must adjust your use of contract goals as follows:
(1) If your approved projection under paragraph (c) of this section estimates that you can meet your entire overall
goal for a given year through race - neutral means, you must implement your program without setting contract goals
during that year, unless it becomes necessary in order meet your overall goal.
Example to paragraph (f)(1): Your overall goal for Year 1 is 12 percent. You estimate that you can obtain 12
percent or more DBE participation through the use of race - neutral measures, without any use of contract goals. In
this case, you do not set any contract goals for the contracts that will be performed in Year 1. However, if part way
through Year 1, your DBE awards or commitments are not at a level that would permit you to achieve your overall
goal for Year 1, you could begin setting race - conscious DBE contract goals during the remainder of the year as part
of your obligation to implement your program in good faith.
(2) If, during the course of any year in which you are using contract goals, you determine that you will exceed your
overall goal, you must reduce or eliminate the use of contract goals to the extent necessary to ensure that the use of
contract goals does not result in exceeding the overall goal. If you determine that you will fall short of your overall
goal, then you must make appropriate modifications in your use of race - neutral and/or race - conscious measures to
allow you to meet the overall goal.
Example to paragraph (f)(2): In Year II, your overall goal is 12 percent. You have estimated that you can obtain 5
percent DBE participation through use of race - neutral measures. You therefore plan to obtain the remaining 7
percent participation through use of DBE goals. By September, you have already obtained 11 percent DBE
participation for the year. For contracts let during the remainder of the year, you use contract goals only to the extent
necessary to obtain an additional one percent DBE participation. However, if you determine in September that your
participation for the year is likely to be only 8 percent total, then you would increase your use of race - neutral and/or
race - conscious means during the remainder of the year in order to achieve your overall goal.
(3) If the DBE participation you have obtained by race - neutral means alone meets or exceeds your overall goals for
two consecutive years, you are not required to make a projection of the amount of your goal you can meet using
such means in the next year. You do not set contract goals on any contracts in the next year. You continue using
only race - neutral means to meet your overall goals unless and until you do not meet your overall goal for a year.
Yakima DBE Program Page 32 of 60
Example to paragraph (f)(3): Your overall goal for Years I and Year II is 10 percent. The DBE participation you
obtain through race - neutral measures alone is 10 percent or more in each year (For this purpose, it does not matter
whether you obtained additional DBE participation through using contract goals in these years.) In Year III and
following years, you do not need to make a projection under paragraph (c) of this section of the portion of your
overall goal you expect to meet using race - neutral means. You simply use race - neutral means to achieve your
overall goals. However, if in Year VI your DBE participation falls short of your overall goal, then you must make a
paragraph (c) projection for Year VII and, if necessary, resume use of contract goals in that year.
(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), you must reduce your use of contract goals
proportionately in the following year.
Example to paragraph (f)(4): In Years I and II, your overall goal is 12 percent, and you obtain 14 and 16 percent
DBE participation, respectively. You have exceeded your goals over the two -year period by an average of 25
percent. In Year III, your overall goal is again 12 percent, and your paragraph (c) projection estimates that you will
obtain 4 percent DBE participation through race - neutral means and 8 percent through contract goals. You then
reduce the contract goal projection by 25 percent ( i.e. , from 8 to 6 percent) and set contract goals accordingly
during the year. If in Year III you obtain 11 percent participation, you do not use this contract goal adjustment
mechanism for Year IV, because there have not been two consecutive years of exceeding overall goals.
(g) In any year in which you project meeting part of your goal through race - neutral means and the remainder
through contract goals, you must maintain data separately on DBE achievements in those contracts with and without
contract goals, respectively. You must report this data to the concerned operating administration as provided in
§26.11.
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011]
§ 26.53 What are the good faith efforts procedures recipients follow in situations where there are contract
goals?
(a) When you have established a DBE contract goal, you must award the contract only to a bidder /offeror who
makes good faith efforts to meet it. You must determine that a bidder /offeror has made good faith efforts if the
bidder /offeror does either of the following things:
(1) Documents that it has obtained enough DBE participation to meet the goal; or
(2) Documents that it made adequate good faith efforts to meet the goal, even though it did not succeed in obtaining
enough DBE participation to do so. If the bidder /offeror does document adequate good faith efforts, you must not
deny award of the contract on the basis that the bidder /offeror failed to meet the goal. See Appendix A of this part
for guidance in determining the adequacy of a bidder /offeror's good faith efforts.
(b) In your solicitations for DOT - assisted contracts for which a contract goal has been established, you must require
the following:
(1) Award of the contract will be conditioned on meeting the requirements of this section;
(2) All bidders /offerors will be required to submit the following information to the recipient, at the time provided in
paragraph (b)(3) of this section:
(i) The names and addresses of DBE firms that will participate in the contract;
(ii) A description of the work that each DBE will perform;
(iii) The dollar amount of the participation of each DBE firm participating;
(iv) Written documentation of the bidder /offeror's commitment to use a DBE subcontractor whose participation it
submits to meet a contract goal;
Yakima DBE Program Page 33 of 60
(v) Written confirmation from the DBE that it is participating in the contract as provided in the prime contractor's
commitment; and
(vi) If the contract goal is not met, evidence of good faith efforts (see Appendix A of this part); and
(3) At your discretion, the bidder /offeror must present the information required by paragraph (b)(2) of this section —
(i) Under sealed bid procedures, as a matter of responsiveness, or with initial proposals, under contract negotiation
procedures; or
(ii) At any time before you commit yourself to the performance of the contract by the bidder /offeror, as a matter of
responsibility.
(c) You must make sure all information is complete and accurate and adequately documents the bidder /offeror's
good faith efforts before committing yourself to the performance of the contract by the bidder /offeror.
(d) If you determine that the apparent successful bidder /offeror has failed to meet the requirements of paragraph (a)
of this section, you must, before awarding the contract, provide the bidder /offeror an opportunity for administrative
reconsideration.
(1) As part of this reconsideration, the bidder /offeror must have the opportunity to provide written documentation or
argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so.
(2) Your decision on reconsideration must be made by an official who did not take part in the original determination
that the bidder /offeror failed to meet the goal or make adequate good faith efforts to do so.
(3) The bidder /offeror must have the opportunity to meet in person with your reconsideration official to discuss the
issue of whether it met the goal or made adequate good faith efforts to do so.
(4) You must send the bidder /offeror a written decision on reconsideration, explaining the basis for finding that the
bidder did or did not meet the goal or make adequate good faith efforts to do so.
(5) The result of the reconsideration process is not administratively appealable to the Department of Transportation.
(e) In a "design- build" or "turnkey" contracting situation, in which the recipient lets a master contract to a
contractor, who in turn lets subsequent subcontracts for the work of the project, a recipient may establish a goal for
the project. The master contractor then establishes contract goals, as appropriate, for the subcontracts it lets.
Recipients must maintain oversight of the master contractor's activities to ensure that they are conducted consistent
with the requirements of this part.
(0(1) You must require that a prime contractor not terminate a DBE subcontractor listed in response to paragraph
(b)(2) of this section (or an approved substitute DBE firm) without your prior written consent. This includes, but is
not limited to, instances in which a prime contractor seeks to perform work originally designated for a DBE
subcontractor with its own forces or those of an affiliate, a non -DBE firm, or with another DBE firm.
(2) You may provide such written consent only if you agree, for reasons stated in your concurrence document, that
the prime contractor has good cause to terminate the DBE firm.
(3) For purposes of this paragraph, good cause includes the following circumstances:
(i) The listed DBE subcontractor fails or refuses to execute a written contract;
(ii) The listed DBE subcontractor fails or refuses to perform the work of its subcontract in a way consistent with
normal industry standards. Provided, however, that good cause does not exist if the failure or refusal of the DBE
subcontractor to perform its work on the subcontract results from the bad faith or discriminatory action of the prime
contractor;
(iii) The listed DBE subcontractor fails or refuses to meet the prime contractor's reasonable, nondiscriminatory bond
requirements.
Yakima DBE Program Page 34 of 60
(iv) The listed DBE subcontractor becomes bankrupt, insolvent, or exhibits credit unworthiness;
(v) The listed DBE subcontractor is ineligible to work on public works projects because of suspension and
debarment proceedings pursuant 2 CFR Parts 180, 215 and 1,200 or applicable state law;
(vii) You have determined that the listed DBE subcontractor is not a responsible contractor;
(vi) The listed DBE subcontractor voluntarily withdraws from the project and provides to you written notice of its
withdrawal;
(vii) The listed DBE is ineligible to receive DBE credit for the type of work required;
(viii) A DBE owner dies or becomes disabled with the result that the listed DBE contractor is unable to complete its
work on the contract;
(ix) Other documented good cause that you determine compels the termination of the DBE subcontractor. Provided,
that good cause does not exist if the prime contractor seeks to terminate a DBE it relied upon to obtain the contract
so that the prime contractor can self - perform the work for which the DBE contractor was engaged or so that the
prime contractor can substitute another DBE or non -DBE contractor after contract award.
(4) Before transmitting to you its request to terminate and/or substitute a DBE subcontractor, the prime contractor
must give notice in writing to the DBE subcontractor, with a copy to you, of its intent to request to terminate and/or
substitute, and the reason for the request.
(5) The prime contractor must give the DBE five days to respond to the prime contractor's notice and advise you and
the contractor of the reasons, if any, why it objects to the proposed termination of its subcontract and why you
should not approve the prime contractor's action. If required in a particular case as a matter of public necessity ( e.g.,
safety), you may provide a response period shorter than five days.
(6) In addition to post -award terminations, the provisions of this section apply to preaward deletions of or
substitutions for DBE firms put forward by offerors in negotiated procurements.
(g) When a DBE subcontractor is terminated, or fails to complete its work on the contract for any reason, you must
require the prime contractor to make good faith efforts to find another DBE subcontractor to substitute for the
original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same amount
of work under the contract as the DBE that was terminated, to the extent needed to meet the contract goal you
established for the procurement.
(h) You must include in each prime contract a provision for appropriate administrative remedies that you will invoke
if the prime contractor fails to comply with the requirements of this section.
(i) You must apply the requirements of this section to DBE bidders /offerors for prime contracts. In determining
whether a DBE bidder /offeror for a prime contract has met a contract goal, you count the work the DBE has
committed to performing with its own forces as well as the work that it has committed to be performed by DBE
subcontractors and DBE suppliers.
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011]
§ 26.55 How is DBE participation counted toward goals?
(a) When a DBE participates in a contract, you count only the value of the work actually performed by the DBE
toward DBE goals.
(1) Count the entire amount of that portion of a construction contract (or other contract not covered by paragraph
(a)(2) of this section) that is performed by the DBE's own forces. Include the cost of supplies and materials obtained
by the DBE for the work of the contract, including supplies purchased or equipment leased by the DBE (except
supplies and equipment the DBE subcontractor purchases or leases from the prime contractor or its affiliate).
Yakima DBE Program Page 35 of 60
•
(2) Count the entire amount of fees or commissions charged by a DBE firm for providing a bona fide service, such
as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically
required for the performance of a DOT - assisted contract, toward DBE goals, provided you determine the fee to be
reasonable and not excessive as compared with fees customarily allowed for similar services.
(3) When a DBE subcontracts part of the work of its contract to another firm, the value of the subcontracted work
may be counted toward DBE goals only if the DBE's subcontractor is itself a DBE. Work that a DBE subcontracts to
a non -DBE firm does not count toward DBE goals.
(b) When a DBE performs as a participant in a joint venture, count a portion of the total dollar value of the contract
equal to the distinct, clearly defined portion of the work of the contract that the DBE performs with its own forces
toward DBE goals.
(c) Count expenditures to a DBE contractor toward DBE goals only if the DBE is performing a commercially useful
function on that contract.
(1) A DBE performs a commercially useful function when it is responsible for execution of the work of the contract
and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To
perform a commercially useful function, the DBE must also be responsible, with respect to materials and supplies
used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing
(where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially
useful function, you must evaluate the amount of work subcontracted, industry practices, whether the amount the
firm is to be paid under the contract is commensurate with the work it is actually performing and the DBE credit
claimed for its performance of the work, and other relevant factors.
(2) A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a
transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE
participation. In determining whether a DBE is such an extra participant, you must examine similar transactions,
particularly those in which DBEs do not participate.
(3) If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its
own work force, or the DBE subcontracts a greater portion of the work of a contract than would be expected on the
basis of normal industry practice for the type of work involved, you must presume that it is not performing a
commercially useful function.
(4) When a DBE is presumed not to be performing a commercially useful function as provided in paragraph (c)(3) of
this section, the DBE may present evidence to rebut this presumption. You may determine that the firm is
performing a commercially useful function given the type of work involved and normal industry practices.
(5) Your decisions on commercially useful function matters are subject to review by the concerned operating
administration, but are not administratively appealable to DOT.
(d) Use the following factors in determining whether a DBE trucking company is performing a commercially useful
function:
(1) The DBE must be responsible for the management and supervision of the entire trucking operation for which it is
responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE
goals.
(2) The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the
contract.
(3) The DBE receives credit for the total value of the transportation services it provides on the contract using trucks
it owns, insures, and operates using drivers it employs.
(4) The DBE may lease trucks from another DBE firm, including an owner- operator who is certified as a DBE. The
DBE who leases trucks from another DBE receives credit for the total value of the transportation services the lessee
DBE provides on the contract.
Yakima DBE Program Page 36 of 60
(5) The DBE may also lease trucks from a non -DBE firm, including from an owner- operator. The DBE who leases
trucks from a non -DBE is entitled to credit for the total value of transportation services provided by non -DBE
lessees not to exceed the value of transportation services provided by DBE -owned trucks on the contract. Additional
participation by non -DBE lessees receives credit only for the fee or commission it receives as a result of the lease
arrangement. If a recipient chooses this approach, it must obtain written consent from the appropriate Department
Operating Administration.
Example to this paragraph (d)(5): DBE Firm X uses two of its own trucks on a contract. It leases two trucks from
DBE Firm Y and six trucks from non -DBE Firm Z. DBE credit would be awarded for the total value of
transportation services provided by Firm X and Firm Y, and may also be awarded for the total value of
transportation services provided by four of the six trucks provided by Firm Z. In all, full credit would be allowed for
the participation of eight trucks. With respect to the other two trucks provided by Firm Z, DBE credit could be
awarded only for the fees or commissions pertaining to those trucks Firm X receives as a result of the lease with
Firm Z.
(6) For purposes of this paragraph (d), a lease must indicate that the DBE has exclusive use of and control over the
truck. This does not preclude the leased truck from working for others during the term of the lease with the consent
of the DBE, so long as the lease gives the DBE absolute priority for use of the leased truck. Leased trucks must
display the name and identification number of the DBE.
(e) Count expenditures with DBEs for materials or supplies toward DBE goals as provided in the following:
(1)(i) If the materials or supplies are obtained from a DBE manufacturer, count 100 percent of the cost of the
materials or supplies toward DBE goals.
(ii) For purposes of this paragraph (e)(1), a manufacturer is a firm that operates or maintains a factory or
establishment that produces, on the premises, the materials, supplies, articles, or equipment required under the
contract and of the general character described by the specifications.
(2)(i) If the materials or supplies are purchased from a DBE regular dealer, count 60 percent of the cost of the
materials or supplies toward DBE goals.
(ii) For purposes of this section, a regular dealer is a firm that owns, operates, or maintains a store, warehouse, or
other establishment in which the materials, supplies, articles or equipment of the general character described by the
specifications and required under the contract are bought, kept in stock, and regularly sold or leased to the public in
the usual course of business.
(A) To be a regular dealer, the firm must be an established, regular business that engages, as its principal business
and under its own name, in the purchase and sale or lease of the products in question.
(B) A person may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or
asphalt without owning, operating, or maintaining a place of business as provided in this paragraph (e)(2)(ii) if the
person both owns and operates distribution equipment for the products. Any supplementing of regular dealers' own
distribution equipment shall be by a long -term lease agreement and not on an ad hoc or contract -by- contract basis.
(C) Packagers, brokers, manufacturers' representatives, or other persons who arrange or expedite transactions are not
regular dealers within the meaning of this paragraph (e)(2).
(3) With respect to materials or supplies purchased from a DBE which is neither a manufacturer nor a regular dealer,
count the entire amount of fees or commissions charged for assistance in the procurement of the materials and
supplies, or fees or transportation charges for the delivery of materials or supplies required on a job site, toward
DBE goals, provided you determine the fees to be reasonable and not excessive as compared with fees customarily
allowed for similar services. Do not count any portion of the cost of the materials and supplies themselves toward
DBE goals, however.
(f) If a firm is not currently certified as a DBE in accordance with the standards of subpart D of this part at the time
of the execution of the contract, do not count the firm's participation toward any DBE goals, except as provided for
in §26.87(i)).
Yakima DBE Program Page 37 of 60
(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.
(h) Do not count the participation of a DBE subcontractor toward a contractor's final compliance with its DBE
obligations on a contract until the amount being counted has actually been paid to the DBE.
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003]
Subpart D— Certification Standards
§ 26.61 How are burdens of proof allocated in the certification process?
(a) In determining whether to certify a firm as eligible to participate as a DBE, you must apply the standards of this
subpart.
(b) The firm seeking certification has the burden of demonstrating to you, by a preponderance of the evidence, that it
meets the requirements of this subpart concerning group membership or individual disadvantage, business size,
ownership, and control.
(c) You must rebuttably presume that members of the designated groups identified in §26.67(a) are socially and
economically disadvantaged. This means they do not have the burden of proving to you that they are socially and
economically disadvantaged. In order to obtain the benefit of the rebuttable presumption, individuals must submit a
signed, notarized statement that they are a member of one of the groups in §26.67(a). Applicants do have the
obligation to provide you information concerning their economic disadvantage ( see §26.67).
(d) Individuals who are not presumed to be socially and economically disadvantaged, and individuals concerning
whom the presumption of disadvantage has been rebutted, have the burden of proving to you, by a preponderance of
the evidence, that they are socially and economically disadvantaged. (See Appendix E of this part.)
(e) You must make determinations concerning whether individuals and firms have met their burden of
demonstrating group membership, ownership, control, and social and economic disadvantage (where disadvantage
must be demonstrated on an individual basis) by considering all the facts in the record, viewed as a whole.
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003]
§ 26.63 What rules govern group membership determinations?
(a)(1) If, after reviewing the signed notarized statement of membership in a presumptively disadvantaged group (see
§26.61(c)), you have a well founded reason to question the individual's claim of membership in that group, you must
require the individual to present additional evidence that he or she is a member of the group.
(2) You must provide the individual a written explanation of your reasons for questioning his or her group
membership and a written request for additional evidence as outlined in paragraph (b) of this section.
(3) In implementing this section, you must take special care to ensure that you do not impose a disproportionate
burden on members of any particular designated group Imposing a disproportionate burden on members of a
particular group could violate §26.7(b) and/or Title VI of the Civil Rights Act of 1964 and 49 CFR part 21.
(b) In making such a determination, you must consider whether the person has held himself out to be a member of
the group over a long period of time prior to application for certification and whether the person is regarded as a
member of the group by the relevant community. You may require the applicant to produce appropriate
documentation of group membership.
(1) If you determine that an individual claiming to be a member of a group presumed to be disadvantaged is not a
member of a designated disadvantaged group, the individual must demonstrate social and economic disadvantage on
an individual basis.
Yakima DBE Program Page 38 of 60
(2) Your decisions concerning membership in a designated group are subject to the certification appeals procedure
of §26.89.
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35554, June 16, 2003]
§ 26.65 What rules govern business size determinations?
(a) To be an eligible DBE, a firm (including its affiliates) must be an existing small business, as defined by Small
Business Administration (SBA) standards. As a recipient, you must apply current SBA business size standard(s)
found in 13 CFR part 121 appropriate to the type(s) of work the firm seeks to perform in DOT - assisted contracts.
(b) Even if it meets the requirements of paragraph (a) of this section, a firm is not an eligible DBE in any Federal
fiscal year if the firm (including its affiliates) has had average annual gross receipts, as defined by SBA regulations
(see 13 CFR 121.402), over the firm's previous three fiscal years, in excess of $22.41 million.
(c) The Department adjusts the number in paragraph (b) of this section annually using the Department of Commerce
price deflators for purchases by State and local governments as the basis for this adjustment.
[74 FR 15224, Apr. 3, 2009]
§ 26.67 What rules determine social and economic disadvantage?
(a) Presumption of disadvantage. (1) You must rebuttably presume that citizens of the United States (or lawfully
admitted permanent residents) 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.
(2)(i) You must require each individual owner of a firm applying to participate as a DBE, whose ownership and
control are relied upon for DBE certification to certify that he or she has a personal net worth that does not exceed
$1.32 million.
(ii) You must require each individual who makes this certification to support it with a signed, notarized statement of
personal net worth, with appropriate supporting documentation. This statement and documentation must not be
unduly lengthy, burdensome, or intrusive.
(iii) In determining an individual's net worth, you must observe the following requirements:
(A) Exclude an individual's ownership interest in the applicant firm;
(B) Exclude the individual's equity in his or her primary residence (except any portion of such equity that is
attributable to excessive withdrawals from the applicant firm).
(C) Do not use a contingent liability to reduce an individual's net worth.
(D) With respect to assets held in vested pension plans, Individual Retirement Accounts, 401(k) accounts, or other
retirement savings or investment programs in which the assets cannot be distributed to the individual at the present
time without significant adverse tax or interest consequences, include only the present value of such assets, less the
tax and interest penalties that would accrue if the asset were distributed at the present time.
(iv) Notwithstanding any provision of Federal or state law, you must not release an individual's personal net worth
statement nor any documents pertaining to it to any third party without the written consent of the submitter.
Provided, that you must transmit this information to DOT in any certification appeal proceeding under section 26.89
of this part or to any other state to which the individual's firm has applied for certification under §26.85 of this part.
(b) Rebuttal of presumption of disadvantage. (1) If the statement of personal net worth that an individual submits
under paragraph (a)(2) of this section shows that the individual's personal net worth exceeds $1.32 million, the
Yakima DBE Program Page 39 of 60
individual's presumption of economic disadvantage is rebutted. You are not required to have a proceeding under
paragraph (b)(2) of this section in order to rebut the presumption of economic disadvantage in this case.
(2) If you have a reasonable basis to believe that an individual who is a member of one of the designated groups is
not, in fact, socially and/or economically disadvantaged you may, at any time, start a proceeding to determine
whether the presumption should be regarded as rebutted with respect to that individual. Your proceeding must
follow the procedures of §26.87.
(3) In such a proceeding, you have the burden of demonstrating, by a preponderance of the evidence, that the
individual is not socially and economically disadvantaged. You may require the individual to produce information
relevant to the determination of his or her disadvantage.
(4) When an individual's presumption of social and/or economic disadvantage has been rebutted, his or her
ownership and control of the firm in question cannot be used for purposes of DBE eligibility under this subpart
unless and until he or she makes an individual showing of social and/or economic disadvantage. If the basis for
rebutting the presumption is a determination that the individual's personal net worth exceeds $1.32 million, the
individual is no longer eligible for participation in the program and cannot regain eligibility by making an individual
showing of disadvantage.
(c) [Reserved]
(d) Individual determinations of social and economic disadvantage. Firms owned and controlled by individuals who
are not presumed to be socially and economically disadvantaged (including individuals whose presumed
disadvantage has been rebutted) may apply for DBE certification. You must make a case -by -case determination of
whether each individual whose ownership and control are relied upon for DBE certification is socially and
economically disadvantaged. In such a proceeding, the applicant firm has the burden of demonstrating to you, by a
preponderance of the evidence, that the individuals who own and control it are socially and economically
disadvantaged. An individual whose personal net worth exceeds $1.32 million shall not be deemed to be
economically disadvantaged. In making these determinations, use the guidance found in Appendix E of this part.
You must require that applicants provide sufficient information to permit determinations under the guidance of
Appendix E of this part.
[64 FR 5126, Feb 2, 1999, as amended at 64 FR 34570, June 28, 1999; 68 FR 35554, June 16, 2003; 76 FR 5099,
Jan. 28, 2011]
§ 26.69 What rules govern determinations of ownership?
(a) In determining whether the socially and economically disadvantaged participants in a firm own the firm, you
must consider all the facts in the record, viewed as a whole.
(b) To be an eligible DBE, a firm must be at least 51 percent owned by socially and economically disadvantaged
individuals.
(1) In the case of a corporation, such individuals must own at least 51 percent of the each class of voting stock
outstanding and 51 percent of the aggregate of all stock outstanding.
(2) In the case of a partnership, 51 percent of each class of partnership interest must be owned by socially and
economically disadvantaged individuals. Such ownership must be reflected in the firm's partnership agreement.
(3) In the case of a limited liability company, at least 51 percent of each class of member interest must be owned by
socially and economically disadvantaged individuals.
(c) The firm's ownership by socially and economically disadvantaged individuals must be real, substantial, and
continuing, going beyond pro forma ownership of the firm as reflected in ownership documents. The disadvantaged
owners must enjoy the customary incidents of ownership, and share in the risks and profits commensurate with their
ownership interests, as demonstrated by the substance, not merely the form, of arrangements.
Yakima DBE Program Page 40 of 60
(d) All securities that constitute ownership of a firm shall be held directly by disadvantaged persons. Except as
provided in this paragraph (d), no securities or assets held in trust, or by any guardian for a minor, are considered as
held by disadvantaged persons in determining the ownership of a firm. However, securities or assets held in trust are
regarded as held by a disadvantaged individual for purposes of determining ownership of the firm, if—
(1) The beneficial owner of securities or assets held in trust is a disadvantaged individual, and the trustee is the same
or another such individual; or
(2) The beneficial owner of a trust is a disadvantaged individual who, rather than the trustee, exercises effective
control over the management, policy - making, and daily operational activities of the firm. Assets held in a revocable
living trust may be counted only in the situation where the same disadvantaged individual is the sole grantor,
beneficiary, and trustee.
(e) The contributions of capital or expertise by the socially and economically disadvantaged owners to acquire their
ownership interests must be real and substantial. Examples of insufficient contributions include a promise to
contribute capital, an unsecured note payable to the firm or an owner who is not a disadvantaged individual, or mere
participation in a firm's activities as an employee. Debt instruments from financial institutions or other organizations
that lend funds in the normal course of their business do not render a firm ineligible, even if the debtor's ownership
interest is security for the loan.
(f) The following requirements apply to situations in which expertise is relied upon as part of a disadvantaged
owner's contribution to acquire ownership:
(1) The owner's expertise must be—
(i) In a specialized field;
(ii) Of outstanding quality;
(iii) In areas critical to the firm's operations;
(iv) Indispensable to the firm's potential success;
(v) Specific to the type of work the firm performs; and
(vi) Documented in the records of the firm. These records must clearly show the contribution of expertise and its
value to the firm.
(2) The individual whose expertise is relied upon must have a significant financial investment in the firm.
(g) You must always deem as 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 —
(1) As the result of a final property settlement or court order in a divorce or legal separation, provided that no term
or condition of the agreement or divorce decree is inconsistent with this section; or
(2) Through inheritance, or otherwise because of the death of the former owner.
(h)(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 non - disadvantaged individual or non -DBE firm who is—
(i) Involved in the same firm for which the individual is seeking certification, or an affiliate of that firm;
(ii) Involved in the same or a similar line of business; or
(iii) Engaged in an ongoing business relationship with the firm, or an affiliate of the firm, for which the individual is
seeking certification.
Yakima DBE Program Page 41 of 60
(2) To overcome this presumption and permit the interests or assets to be counted, the disadvantaged individual must
demonstrate to you, by clear and convincing evidence, that —
(i) The gift or transfer to the disadvantaged individual was made for reasons other than obtaining certification as a
DBE; and
(ii) The disadvantaged individual actually controls the management, policy, and operations of the firm,
notwithstanding the continuing participation of a non - disadvantaged individual who provided the gift or transfer
(i) You must apply the following rules in situations in which marital assets form a basis for ownership of a firm:
(1) When marital assets (other than the assets of the business in question), held jointly or as community property by
both spouses, are used to acquire the ownership interest asserted by one spouse, you must deem the ownership
interest in the firm to have been acquired by that spouse with his or her own individual resources, provided that the
other spouse irrevocably renounces and transfers all rights in the ownership interest in the manner sanctioned by the
laws of the state in which either spouse or the firm is domiciled. You do not count a greater portion of joint or
community property assets toward ownership than state law would recognize as belonging to the socially and
economically disadvantaged owner of the applicant firm.
(2) A copy of the document legally transferring and renouncing the other spouse's rights in the jointly owned or
community assets used to acquire an ownership interest in the firm must be included as part of the firm's application
for DBE certification.
(j) You may consider the following factors in determining the ownership of a firm. However, you must not regard a
contribution of capital as failing to be real and substantial, or find a firm ineligible, solely because —
(1) A socially and economically disadvantaged individual acquired his or her ownership interest as the result of a
gift, or transfer without adequate consideration, other than the types set forth in paragraph (h) of this section;
(2) There is a provision for the co- signature of a spouse who is not a socially and economically disadvantaged
individual on financing agreements, contracts for the purchase or sale of real or personal property, bank signature
cards, or other documents; or
(3) Ownership of the firm in question or its assets is transferred for adequate consideration from a spouse who is not
a socially and economically disadvantaged individual to a spouse who is such an individual. In this case, you must
give particularly close and careful scrutiny to the ownership and control of a firm to ensure that it is owned and
controlled, in substance as well as in form, by a socially and economically disadvantaged individual.
§ 26.71 What rules govern determinations concerning control?
(a) In determining whether socially and economically disadvantaged owners control a firm, you must consider all
the facts in the record, viewed as a whole.
(b) Only an independent business may be certified as a DBE. An independent business is one the viability of which
does not depend on its relationship with another firm or firms.
(1) In determining whether a potential DBE is an independent business, you must scrutinize relationships with non -
DBE firms, in such areas as personnel, facilities, equipment, financial and/or bonding support, and other resources.
(2) You must consider whether present or recent employer /employee relationships between the disadvantaged
owner(s) of the potential DBE and non -DBE firms or persons associated with non -DBE firms compromise the
independence of the potential DBE firm.
(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.
(4) In considering factors related to the independence of a potential DBE firm, you must consider the consistency of
relationships between the potential DBE and non -DBE firms with normal industry practice.
Yakima DBE Program Page 42 of 60
(c) A DBE firm must not be subject to any formal or informal restrictions which limit the customary discretion of
the socially and economically disadvantaged owners. There can be no restrictions through corporate charter
provisions, by -law provisions, contracts or any other formal or informal devices (e.g., cumulative voting rights,
voting powers attached to different classes of stock, employment contracts, requirements for concurrence by non -
disadvantaged partners, conditions precedent or subsequent, executory agreements, voting trusts, restrictions on or
assignments of voting rights) that prevent the socially and economically disadvantaged owners, without the
cooperation or vote of any non - disadvantaged individual, from making any business decision of the firm. This
paragraph does not preclude a spousal co- signature on documents as provided for in §26.69(j)(2).
(d) The socially and economically disadvantaged owners must possess the power to direct or cause the direction of
the management and policies of the firm and to make day -to -day as well as long -term decisions on matters of
management, policy and operations.
(1) A disadvantaged owner must hold the highest officer position in the company (e.g., chief executive officer or
president).
(2) In a corporation, disadvantaged owners must control the board of directors.
(3) In a partnership, one or more disadvantaged owners must serve as general partners, with control over all
partnership decisions.
(e) Individuals who are not socially and economically disadvantaged may be involved in a DBE firm as owners,
managers, employees, stockholders, officers, and/or directors. Such individuals must not, however, possess or
exercise the power to control the firm, or be disproportionately responsible for the operation of the firm.
(f) The socially and economically disadvantaged owners of the firm may delegate various areas of the management,
policymaking, or daily operations of the firm to other participants in the firm, regardless of whether these
participants are socially and economically disadvantaged individuals. Such delegations of authority must be
revocable, and the socially and economically disadvantaged owners must retain the power to hire and fire any
person to whom such authority is delegated. The managerial role of the socially and economically disadvantaged
owners in the firm's overall affairs must be such that the recipient can reasonably conclude that the socially and
economically disadvantaged owners actually exercise control over the firm's operations, management, and policy.
(g) The socially and economically disadvantaged owners must have an overall understanding of, and managerial and
technical competence and experience directly related to, the type of business in which the firm is engaged and the
firm's operations. The socially and economically disadvantaged owners are not required to have experience or
expertise in every critical area of the firm's operations, or to have greater experience or expertise in a given field
than managers or key employees. The socially and economically disadvantaged owners must have the ability to
intelligently and critically evaluate information presented by other participants in the firm's activities and to use this
information to make independent decisions concerning the firm's daily operations, management, and policymaking.
Generally, expertise limited to office management, administration, or bookkeeping functions unrelated to the
principal business activities of the firm is insufficient to demonstrate control.
(h) If state or local law requires the persons to have a particular license or other credential in order to own and/or
control a certain type of firm, then the socially and economically disadvantaged persons who own and control a
potential DBE firm of that type must possess the required license or credential. If state or local law does not require
such a person to have such a license or credential to own and/or control a firm, you must not deny certification
solely on the ground that the person lacks the license or credential. However, you may take into account the absence
of the license or credential as one factor in determining whether the socially and economically disadvantaged
owners actually control the firm.
(i)(1) You may consider differences in remuneration between the socially and economically disadvantaged owners
and other participants in the firm in determining whether to certify a firm as a DBE. Such consideration shall be in
the context of the duties of the persons involved, normal industry practices, the firm's policy and practice concerning
reinvestment of income, and any other explanations for the differences proffered by the firm. You may determine
that a firm is controlled by its socially and economically disadvantaged owner although that owner's remuneration is
lower than that of some other participants in the firm.
Yakima DBE Program Page 43 of 60
(2) In a case where a non - disadvantaged individual formerly controlled the firm, and a socially and economically
disadvantaged individual now controls it, you may consider a difference between the remuneration of the former and
current controller of the firm as a factor in determining who controls the firm, particularly when the non -
disadvantaged individual remains involved with the firm and continues to receive greater compensation than the
disadvantaged individual.
(j) In order to be viewed as controlling a firm, a socially and economically disadvantaged owner cannot engage in
outside employment or other business interests that conflict with the management of the firm or prevent the
individual from devoting sufficient time and attention to the affairs of the firm to control its activities. For example,
absentee ownership of a business and part-time work in a full -time firm are not viewed as constituting control.
However, an individual could be viewed as controlling a part-time business that operates only on evenings and/or
weekends, if the individual controls it all the time it is operating.
(k)(1) A socially and economically disadvantaged individual may control a firm even though one or more of the
individual's immediate family members (who themselves are not socially and economically disadvantaged
individuals) participate in the firm as a manager, employee, owner, or in another capacity. Except as otherwise
provided in this paragraph, you must make a judgment about the control the socially and economically
disadvantaged owner exercises vis -a -vis other persons involved in the business as you do in other situations, without
regard to whether or not the other persons are immediate family members.
(2) If you cannot determine that the socially and economically disadvantaged owners —as distinct from the family as
a whole —control the firm, then the socially and economically disadvantaged owners have failed to carry their
burden of proof concerning control, even though they may participate significantly in the firm's activities.
(1) Where a firm was formerly owned and/or controlled by a non - disadvantaged individual (whether or not an
immediate family member), ownership and/or control were transferred to a socially and economically disadvantaged
individual, and the non - disadvantaged individual remains involved with the firm in any capacity, the disadvantaged
individual now owning the firm must demonstrate to you, by clear and convincing evidence, that:
(1) The transfer of ownership and/or control to the disadvantaged individual was made for reasons other than
obtaining certification as a DBE; and
(2) The disadvantaged individual actually controls the management, policy, and operations of the firm,
notwithstanding the continuing participation of a non - disadvantaged individual who formerly owned and/or
controlled the firm.
(m) In determining whether a firm is controlled by its socially and economically disadvantaged owners, you may
consider whether the firm owns equipment necessary to perform its work. 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.
(n) You must grant certification to a firm only for specific types of work in which the socially and economically
disadvantaged owners have the ability to control the firm. To become certified in an additional type of work, the
firm need demonstrate to you only that its socially and economically disadvantaged owners are able to control the
firm with respect to that type of work. You must not require that the firm be recertified or submit a new application
for certification, but you must verify the disadvantaged owner's control of the firm in the additional type of work.
(1) The types of work a firm can perform (whether on initial certification or when a new type of work is added) must
be described in terms of the most specific available NAICS code for that type of work. If you choose, you may also,
in addition to applying the appropriate NAICS code, apply a descriptor from a classification scheme of equivalent
detail and specificity. A correct NAICS code is one that describes, as specifically as possible, the principal goods or
services which the firm would provide to DOT recipients. Multiple NAICS codes may be assigned where
appropriate. Program participants must rely on, and not depart from, the plain meaning of NAICS code descriptions
in determining the scope of a firm's certification. If your Directory does not list types of work for any firm in a
manner consistent with this paragraph (a)(1), you must update the Directory entry for that firm to meet the
requirements of this paragraph (a)(1) by August 28, 2011.
Yakima DBE Program Page 44 of 60
(2) Firms and recipients must check carefully to make sure that the NAICS codes cited in a certification are kept up-
to -date and accurately reflect work which the UCP has determined the firm's owners can control. The firm bears the
burden of providing detailed company information the certifying agency needs to make an appropriate NAICS code
designation.
(3) If a firm believes that there is not a NAICS code that fully or clearly describes the type(s) of work in which it is
seeking to be certified as a DBE, the firm may request that the certifying agency, in its certification documentation,
supplement the assigned NAICS code(s) with a clear, specific, and detailed narrative description of the type of work
in which the firm is certified. A vague, general, or confusing description is not sufficient for this purpose, and
recipients should not rely on such a description in determining whether a firm's participation can be counted toward
DBE goals.
(4) A certifier is not precluded from changing a certification classification or description if there is a factual basis in
the record. However, certifiers must not make after - the -fact statements about the scope of a certification, not
supported by evidence in the record of the certification action.
(o) A business operating under a franchise or license agreement may be certified if it meets the standards in this
subpart and the franchiser or licenser is not affiliated with the franchisee or licensee. In determining whether
affiliation exists, you should generally not consider the restraints relating to standardized quality, advertising,
accounting format, and other provisions imposed on the franchisee or licensee by the franchise agreement or license,
provided that the franchisee or licensee has the right to profit from its efforts and bears the risk of loss
commensurate with ownership. Alternatively, even though a franchisee or licensee may not be controlled by virtue
of such provisions in the franchise agreement or license, affiliation could arise through other means, such as
common management or excessive restrictions on the sale or transfer of the franchise interest or license.
(p) In order for a partnership to be controlled by socially and economically disadvantaged individuals, any non-
disadvantaged partners must not have the power, without the specific written concurrence of the socially and
economically disadvantaged partner(s), to contractually bind the partnership or subject the partnership to contract or
tort liability.
(q) The socially and economically disadvantaged individuals controlling a firm may use an employee leasing
company. The use of such a company does not preclude the socially and economically disadvantaged individuals
from controlling their firm if they continue to maintain an employer - employee relationship with the leased
employees. This includes being responsible for hiring, firing, training, assigning, and otherwise controlling the on-
the-job activities of the employees, as well as ultimate responsibility for wage and tax obligations related to the
employees.
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5099, Jan. 28, 2011]
§ 26.73 What are other rules affecting certification?
(a)(1) Consideration of whether a firm performs a commercially useful function or is a regular dealer pertains solely
to counting toward DBE goals the participation of firms that have already been certified as DBEs. Except as
provided in paragraph (a)(2) of this section, you must not consider commercially useful function issues in any way
in making decisions about whether to certify a firm as a DBE.
(2) You may consider, in making certification decisions, whether a firm has exhibited a pattern of conduct indicating
its involvement in attempts to evade or subvert the intent or requirements of the DBE program.
(b)(1) You must evaluate the eligibility of a firm on the basis of present circumstances. You must not refuse to
certify a firm based solely on historical information indicating a lack of ownership or control of the firm by socially
and economically disadvantaged individuals at some time in the past, if the firm currently meets the ownership and
control standards of this part.
(2) You must not refuse to certify a firm solely on the basis that it is a newly formed firm, has not completed
projects or contracts at the time of its application, has not yet realized profits from its activities, or has not
demonstrated a potential for success. If the firm meets disadvantaged, size, ownership, and control requirements of
this Part, the firm is eligible for certification.
Yakima DBE Program Page 45 of 60
(c) DBE firms and firms seeking DBE certification shall cooperate fully with your requests (and DOT requests) for
information relevant to the certification process. Failure or refusal to provide such information is a ground for a
denial or removal of certification.
(d) Only firms organized for profit may be eligible DBEs. Not - for - profit organizations, even though controlled by
socially and economically disadvantaged individuals, are not eligible to be certified as DBEs.
(e) An eligible DBE firm must be owned by individuals who are socially and economically disadvantaged. Except as
provided in this paragraph, a firm that is not owned by such individuals, but instead is owned by another firm —even
a DBE firm— cannot be an eligible DBE.
(1) If socially and economically disadvantaged individuals own and control a firm through a parent or holding
company, established for tax, capitalization or other purposes consistent with industry practice, and the parent or
holding company in turn owns and controls an operating subsidiary, you may certify the subsidiary if it otherwise
meets all requirements of this subpart. In this situation, the individual owners and controllers of the parent or
holding company are deemed to control the subsidiary through the parent or holding company.
(2) You may certify such a subsidiary only if there is cumulatively 51 percent ownership of the subsidiary by
socially and economically disadvantaged individuals. The following examples illustrate how this cumulative
ownership provision works:
Example 1: Socially and economically disadvantaged individuals own 100 percent of a holding company, which has
a wholly -owned subsidiary. The subsidiary may be certified, if it meets all other requirements.
Example 2: Disadvantaged individuals own 100 percent of the holding company, which owns 51 percent of a
subsidiary. The subsidiary may be certified, if all other requirements are met.
Example 3: Disadvantaged individuals own 80 percent of the holding company, which in turn owns 70 percent of a
subsidiary. In this case, the cumulative ownership of the subsidiary by disadvantaged individuals is 56 percent (80
percent of the 70 percent). This is more than 51 percent, so you may certify the subsidiary, if all other requirements
are met.
Example 4: Same as Example 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.
Example 5: Disadvantaged individuals own 60 percent of the holding company, which in turn owns 51 percent of a
subsidiary. In this case, the cumulative ownership of the subsidiary by disadvantaged individuals is about 31
percent. This is less than 51 percent, so you cannot certify the subsidiary.
Example 6. The holding company, in addition to the subsidiary seeking certification, owns several other companies.
The combined gross receipts of the holding companies and its subsidiaries are greater than the size standard for the
subsidiary seeking certification and/or the gross receipts cap of §26.65(b). Under the rules concerning affiliation, the
subsidiary fails to meet the size standard and cannot be certified.
(f) Recognition of a business as a separate entity for tax or corporate purposes is not necessarily sufficient to
demonstrate that a firm is an independent business, owned and controlled by socially and economically
disadvantaged individuals.
(g) You must not require a DBE firm to be prequalified as a condition for certification unless the recipient requires
all firms that participate in its contracts and subcontracts to be prequalified.
(h) A firm that is owned by an Indian tribe or Native Hawaiian organization, rather than by Indians or Native
Hawaiians as individuals, may be eligible for certification. Such a firm must meet the size standards of §26.35. Such
a firm must be controlled by socially and economically disadvantaged individuals, as provided in §26.71.
Yakima DBE Program Page 46 of 60
(i) The following special rules apply to the certification of firms related to Alaska Native Corporations (ANCs).
(1) Notwithstanding any other provisions of this subpart, a direct or indirect subsidiary corporation, joint venture, or
partnership entity of an ANC is eligible for certification as a DBE if it meets all of the following requirements:
(i) The Settlement Common Stock of the underlying ANC and other stock of the ANC held by holders of the
Settlement Common Stock and by Natives and descendents of Natives represents a majority of both the total equity
of the ANC and the total voting power of the corporation for purposes of electing directors;
(ii) The shares of stock or other units of common ownership interest in the subsidiary, joint venture, or partnership
entity held by the ANC and by holders of its Settlement Common Stock represent a majority of both the total equity
of the entity and the total voting power of the entity for the purpose of electing directors, the general partner, or
principal officers; and
(iii) The subsidiary, joint venture, or partnership entity has been certified by the Small Business Administration
under the 8(a) or small disadvantaged business program.
(2) As a recipient to whom an ANC- related entity applies for certification, you do not use the DOT uniform
application form ( see Appendix F of this part). You must obtain from the firm documentation sufficient to
demonstrate that entity meets the requirements of paragraph (i)(1) of this section. You must also obtain sufficient
information about the firm to allow you to administer your program ( e.g., information that would appear in your
DBE Directory).
(3) If an ANC- related firm does not meet all the conditions of paragraph (i)(1) of this section, then it must meet the
requirements of paragraph (h) of this section in order to be certified, on the same basis as firms owned by Indian
Tribes or Native Hawaiian Organizations.
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003; 76 FR 5099, Jan. 28, 2011]
Subpart E— Certification Procedures
§ 26.81 What are the requirements for Unified Certification Programs?
(a) You and all other DOT recipients in your state must participate in a Unified Certification Program (UCP).
(1) Within three years of March 4, 1999, you and the other recipients in your state must sign an agreement
establishing the UCP for that state and submit the agreement to the Secretary for approval. The Secretary may, on
the basis of extenuating circumstances shown by the recipients in the state, extend this deadline for no more than
one additional year.
(2) The agreement must provide for the establishment of a UCP meeting all the requirements of this section. The
agreement must specify that the UCP will follow all certification procedures and standards of this part, on the same
basis as recipients; that the UCP shall cooperate fully with oversight, review, and monitoring activities of DOT and
its operating administrations; and that the UCP shall implement DOT directives and guidance concerning
certification matters. The agreement shall also commit recipients to ensuring that the UCP has sufficient resources
and expertise to carry out the requirements of this part. The agreement shall include an implementation schedule
ensuring that the UCP is fully operational no later than 18 months following the approval of the agreement by the
Secretary.
(3) Subject to approval by the Secretary, the UCP in each state may take any form acceptable to the recipients in that
state.
(4) The Secretary shall review the UCP and approve it, disapprove it, or remand it to the recipients in the state for
revisions. A complete agreement which is not disapproved or remanded within 180 days of its receipt is deemed to
be accepted.
(5) If you and the other recipients in your state fail to meet the deadlines set forth in this paragraph (a), you shall
have the opportunity to make an explanation to the Secretary why a deadline could not be met and why meeting the
Yakima DBE Program Page 47 of 60
deadline was beyond your control. If you fail to make such an explanation, or the explanation does not justify the
failure to meet the deadline, the Secretary shall direct you to complete the required action by a date certain. If you
and the other recipients fail to carry out this direction in a timely manner, you are collectively in noncompliance
with this part.
(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.
(1) Certification decisions by the UCP shall be binding on all DOT recipients within the state.
(2) The UCP shall provide "one -stop shopping" to applicants for certification, such that an applicant is required to
apply only once for a DBE certification that will be honored by all recipients in the state.
(3) All obligations of recipients with respect to certification and nondiscrimination must be carried out by UCPs, and
recipients may use only UCPs that comply with the certification and nondiscrimination requirements of this part.
(c) All certifications by UCPs shall be pre - certifications; i.e., certifications that have been made final before the due
date for bids or offers on a contract on which a firm seeks to participate as a DBE.
(d) A UCP is not required to process an application for certification from a firm having its principal place of
business outside the state if the firm is not certified by the UCP in the state in which it maintains its principal place
of business. The "home state" UCP shall share its information and documents concerning the firm with other UCPs
that are considering the firm's application.
(e) Subject to DOT approval as provided in this section, the recipients in two or more states may form a regional
UCP. UCPs may also enter into written reciprocity agreements with other UCPs. Such an agreement shall outline the
specific responsibilities of each participant. A UCP may accept the certification of any other UCP or DOT recipient.
(f) Pending the establishment of UCPs meeting the requirements of this section, you may enter into agreements with
other recipients, on a regional or inter jurisdictional basis, to perform certification functions required by this part.
You may also grant reciprocity to other recipient's certification decisions.
(g) Each UCP shall maintain a unified DBE directory containing, for all firms certified by the UCP (including those
from other states certified under the provisions of this part), the information required by §26.31. The UCP shall
make the directory available to the public electronically, on the internet, as well as in print. The UCP shall update
the electronic version of the directory by including additions, deletions, and other changes as soon as they are made
and shall revise the print version of the Directory at least once a year.
(h) Except as otherwise specified in this section, all provisions of this subpart and subpart D of this part pertaining to
recipients also apply to UCPs.
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5100, Jan. 28, 2011]
§ 26.83 What procedures do recipients follow in making certification decisions?
(a) You must ensure that only firms certified as eligible DBEs under this section participate as DBEs in your
program.
(b) You must determine the eligibility of firms as DBEs consistent with the standards of subpart D of this part.
When a UCP is formed, the UCP must meet all the requirements of subpart D of this part and this subpart that
recipients are required to meet.
(c) You must take all the following steps in determining whether a DBE firm meets the standards of subpart D of
this part:
(1) Perform an on -site visit to the offices of the firm. You must interview the principal officers of the firm and
review their resumes and/or work histories. You must also perform an on -site visit to job sites if there are such sites
on which the firm is working at the time of the eligibility investigation in your jurisdiction or local area. You may
rely upon the site visit report of any other recipient with respect to a firm applying for certification;
Yakima DBE Program Page 48 of 60
(2) If the firm is a corporation, analyze the ownership of stock in the firm;
(3) Analyze the bonding and financial capacity of the firm;
(4) Determine the work history of the firm, including contracts it has received and work it has completed;
(5) Obtain a statement from the firm of the type of work it prefers to perform as part of the DBE program and its
preferred locations for performing the work, if any;
(6) Obtain or compile a list of the equipment owned by or available to the firm and the licenses the firm and its key
personnel possess to perform the work it seeks to do as part of the DBE program;
(7) Require potential DBEs to complete and submit an appropriate application form, unless the potential DBE is an
SBA certified firm applying pursuant to the DOT /SBA MOU.
(i) You must use the application form provided in Appendix F to this part without change or revision. 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.
(ii) You must make sure that the applicant attests to the accuracy and truthfulness of the information on the
application form. This shall be done either in the form of an affidavit sworn to by the applicant before a person who
is authorized by state law to administer oaths or in the form of an unsworn declaration executed under penalty of
perjury of the laws of the United States.
(iii) You must review all information on the form prior to making a decision about the eligibility of the firm.
(d) When another recipient, in connection with its consideration of the eligibility of a firm, makes a written request
for certification information you have obtained about that firm (e.g., including application materials or the report of
a site visit, if you have made one to the firm), you must promptly make the information available to the other
recipient.
(e) [Reserved]
(f) Subject to the approval of the concerned operating administration as part of your DBE program, you may impose
a reasonable application fee for certification. Fee waivers shall be made in appropriate cases.
(g) You must safeguard from disclosure to unauthorized persons information gathered as part of the certification
process that may reasonably be regarded as proprietary or other confidential business information, consistent with
applicable Federal, state, and local law.
(h) Once you have certified a DBE, it shall remain certified until and unless you have removed its certification, in
whole or in part, through the procedures of section 26.87. You may not require DBEs to reapply for certification or
require "recertification" of currently certified firms. However, you may conduct a certification review of a certified
DBE firm, including a new on -site review, three years from the date of the firm's most recent certification, or sooner
if appropriate in light of changed circumstances ( e.g., of the kind requiring notice under paragraph (i) of this
section), a complaint, or other information concerning the firm's eligibility. If you have grounds to question the
firm's eligibility, you may conduct an on -site review on an unannounced basis, at the firm's offices and jobsites.
(i) If you are a DBE, you must inform the recipient or UCP in writing of any change in circumstances affecting your
ability to meet size, disadvantaged status, ownership, or control requirements of this part or any material change in
the information provided in your application form.
(1) Changes in management responsibility among members of a limited liability company are covered by this
requirement.
(2) You must attach supporting documentation describing in detail the nature of such changes.
(3) The notice must take the form of an affidavit sworn to by the applicant before a person who is authorized by
state law to administer oaths or of an unsworn declaration executed under penalty of perjury of the laws of the
Yakima DBE Program Page 49 of 60
United States. You must provide the written notification within 30 days of the occurrence of the change. If you fail
to make timely notification of such a change, you will be deemed to have failed to cooperate under §26.109(c).
(j) If you are a DBE, you must provide to the recipient, every year on the anniversary of the date of your
certification, an affidavit sworn to by the firm's owners before a person who is authorized by state law to administer
oaths or an unsworn declaration executed under penalty of perjury of the laws of the United States. This affidavit
must affirm that there have been no changes in the firm's circumstances affecting its ability to meet size,
disadvantaged status, ownership, or control requirements of this part or any material changes in the information
provided in its application form, except for changes about which you have notified the recipient under paragraph (i)
of this section. The affidavit shall specifically affirm that your firm continues to meet SBA business size criteria and
the overall gross receipts cap of this part, documenting this affirmation with supporting documentation of your
firm's size and gross receipts. If you fail to provide this affidavit in a timely manner, you will be deemed to have
failed to cooperate under §26.109(c).
(k) If you are a recipient, you must make decisions on applications for certification within 90 days of receiving from
the applicant firm all information required under this part. 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. Your failure to make a decision by the
applicable deadline under this paragraph is deemed a constructive denial of the application, on the basis of which the
firm may appeal to DOT under §26.89.
(1) As a recipient or UCP, you must advise each applicant within 30 days from your receipt of the application
whether the application is complete and suitable for evaluation and, if not, what additional information or action is
required.
(m) Except as otherwise provided in this paragraph, if an applicant for DBE certification withdraws its application
before you have issued a decision on the application, the applicant can resubmit the application at any time. As a
recipient or UCP, you may not apply the waiting period provided under §26.86(c) of this part before allowing the
applicant to resubmit its application. However, you may place the reapplication at the "end of the line," behind other
applications that have been made since the firm's previous application was withdrawn. You may also apply the
waiting period provided under §26.86(c) of this part to a firm that has established a pattern of frequently
withdrawing applications before you make a decision.
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003; 76 FR 5100, Jan. 28, 2011]
§ 26.85 Interstate certification.
(a) This section applies with respect to any firm that is currently certified in its home state.
(b) When a firm currently certified in its home state ( "State A ") applies to another State ( "State B ") for DBE
certification, State B may, at its discretion, accept State A's certification and certify the firm, without further
procedures.
(1) To obtain certification in this manner, the firm must provide to State B a copy of its certification notice from
State A.
(2) Before certifying the firm, State B must confirm that the firm has a current valid certification from State A. State
B can do so by reviewing State A's electronic directory or obtaining written confirmation from State A.
(c) In any situation in which State B chooses not to accept State A's certification of a firm as provided in paragraph
(b) of this section, as the applicant firm you must provide the information in paragraphs (c)(1) through (4) of this
section to State B.
(1) You must provide to State B a complete copy of the application form, all supporting documents, and any other
information you have submitted to State A or any other state related to your firm's certification. This includes
affidavits of no change ( see §26.83(j)) and any notices of changes ( see §26.83(i)) that you have submitted to State
Yakima DBE Program Page 50 of 60
A, as well as any correspondence you have had with State As UCP or any other recipient concerning your
application or status as a DBE firm.
(2) You must also provide to State B any notices or correspondence from states other than State A relating to your
status as an applicant or certified DBE in those states. For example, if you have been denied certification or
decertified in State C, or subject to a decertification action there, you must inform State B of this fact and provide all
documentation concerning this action to State B.
(3) If you have filed a certification appeal with DOT ( see §26.89), you must inform State B of the fact and provide
your letter of appeal and DOT's response to State B
(4) You must submit an affidavit sworn to by the firm's owners before a person who is authorized by State law to
administer oaths or an unsworn declaration executed under penalty of perjury of the laws of the United States.
(i) This affidavit must affirm that you have submitted all the information required by 49 CFR 26.85(c) and the
information is complete and, in the case of the information required by §26.85(c)(1), is an identical copy of the
information submitted to State A.
(ii) If the on -site report from State A supporting your certification in State A is more than three years old, as of the
date of your application to State B, State B may require that your affidavit also affirm that the facts in the on -site
report remain true and correct.
(d) As State B, when you receive from an applicant firm all the information required by paragraph (c) of this section,
you must take the following actions:
(1) Within seven days contact State A and request a copy of the site visit review report for the firm ( see
§26.83(c)(1)), any updates to the site visit review, and any evaluation of the firm based on the site visit. As State A,
you must transmit this information to State B within seven days of receiving the request. A pattern by State B of not
making such requests in a timely manner or by "State A" or any other State of not complying with such requests in a
timely manner is noncompliance with this Part.
(2) Determine whether there is good cause to believe that State A's certification of the firm is erroneous or should
not apply in your State. Reasons for making such a determination may include the following:
(i) Evidence that State A's certification was obtained by fraud;
(ii) New information, not available to State A at the time of its certification, showing that the firm does not meet all
eligibility criteria;
(iii) State A's certification was factually erroneous or was inconsistent with the requirements of this part;
(iv) The State law of State B requires a result different from that of the State law of State A.
(v) The information provided by the applicant firm did not meet the requirements of paragraph (c) of this section.
(3) If, as State B, unless you have determined that there is good cause to believe that State A's certification is
erroneous or should not apply in your State, you must, no later than 60 days from the date on which you received
from the applicant firm all the information required by paragraph (c) of this section, send to the applicant firm a
notice that it is certified and place the firm on your directory of certified firms.
(4) If, as State B, you have determined that there is good cause to believe that State A's certification is erroneous or
should not apply in your State, you must, no later than 60 days from the date on which you received from the
applicant firm all the information required by paragraph (c) of this section, send to the applicant firm a notice stating
the reasons for your determination.
Yakima DBE Program Page 51 of 60
(i) This notice must state with particularity the specific reasons why State B believes that the firm does not meet the
requirements of this Part for DBE eligibility and must offer the firm an opportunity to respond to State B with
respect to these reasons.
(ii) The firm may elect to respond in writing, to request an in- person meeting with State B's decision maker to
discuss State B's objections to the firm's eligibility, or both. If the firm requests a meeting, as State B you must
schedule the meeting to take place within 30 days of receiving the firm's request.
(iii) The firm bears the burden of demonstrating, by a preponderance of evidence, that it meets the requirements of
this Part with respect to the particularized issues raised by State B's notice. The firm is not otherwise responsible for
further demonstrating its eligibility to State B.
(iv) The decision maker for State B must be an individual who is thoroughly familiar with the provisions of this Part
concerning certification.
(v) State B must issue a written decision within 30 days of the receipt of the written response from the firm or the
meeting with the decision maker, whichever is later.
(vi) The firm's application for certification is stayed pending the outcome of this process.
(vii) A decision under this paragraph (d)(4) may be appealed to the Departmental Office of Civil Rights under
s §26.89 of this part.
(e) As State B, if you have not received from State A, a copy of the site visit review report by a date 14 days after
you have made a timely request for it, you may hold action required by paragraphs (d)(2) through (4) of this section
in abeyance pending receipt of the site visit review report. In this event, you must, no later than 30 days from the
date on which you received from an applicant firm all the information required by paragraph (c) of this section,
notify the firm in writing of the delay in the process and the reason for it.
(f)(1) As a UCP, when you deny a firm's application, reject the application of a firm certified in State A or any other
State in which the firm is certified, through the procedures of paragraph (d)(4) of this section, or decertify a firm, in
whole or in part, you must make an entry in the Department of Transportation Office of Civil Rights' (DOCR's)
Ineligibility Determination Online Database. You must enter the following information:
(i) The name of the firm;
(ii) The name(s) of the firm's owner(s);
(iii) The type and date of the action;
(iv) The reason for the action.
(2) As a UCP, you must check the DOCR Web site at least once every month to determine whether any firm that is
applying to you for certification or that you have already certified is on the list.
(3) For any such firm that is on the list, you must promptly request a copy of the listed decision from the UCP that
made it. As the UCP receiving such a request, you must provide a copy of the decision to the requesting UCP within
7 days of receiving the request. As the UCP receiving the decision, you must then consider the information in the
decision in determining what, if any, action to take with respect to the certified DBE firm or applicant.
(g) You must implement the requirements of this section beginning January 1, 2012.
[76 FR 5100, Jan. 28, 2011]
§ 26.86 What rules govern recipients' denials of initial requests for certification?
(a) When you deny a request by a firm, which is not currently certified with you, to be certified as a DBE, you must
provide the firm a written explanation of the reasons for the denial, specifically referencing the evidence in the
Yakima DBE Program Page 52 of 60
record that supports each reason for the denial. All documents and other information on which the denial is based
must be made available to the applicant, on request.
(b) When you deny DBE certification to a firm certified by the SBA, you must notify the SBA in writing. The
notification must include the reason for denial.
(c) When a firm is denied certification, you must establish a time period of no more than twelve months that must
elapse before the firm may reapply to the recipient for certification. You may provide, in your DBE program, subject
to approval by the concerned operating administration, a shorter waiting period for reapplication. The time period
for reapplication begins to run on the date the explanation required by paragraph (a) of this section is received by the
firm.
(d) When you make an administratively final denial of certification concerning a firm, the firm may appeal the
denial to the Department under §26.89
[64 FR 5126, Feb. 2, 1999. Redesignated and amended at 68 FR 35555, June 16, 2003]
§ 26.87 What procedures does a recipient use to remove a DBE's eligibility?
(a) Ineligibility complaints. (1) Any person may file with you a written complaint alleging that a currently- certified
firm is ineligible and specifying the alleged reasons why the firm is ineligible. You are not required to accept a
general allegation that a firm is ineligible or an anonymous complaint. The complaint may include any information
or arguments supporting the complainant's assertion that the firm is ineligible and should not continue to be
certified. Confidentiality of complainants' identities must be protected as provided in §26 109(b).
(2) You must review your records concerning the firm, any material provided by the firm and the complainant, and
other available information. You may request additional information from the firm or conduct any other
investigation that you deem necessary.
(3) If you determine, based on this review, that there is reasonable cause to believe that the firm is ineligible, you
must provide written notice to the firm that you propose to find the firm ineligible, setting forth the reasons for the
proposed determination. If you determine that such reasonable cause does not exist, you must notify the complainant
and the firm in writing of this determination and the reasons for it. All statements of reasons for findings on the issue
of reasonable cause must specifically reference the evidence in the record on which each reason is based.
(b) Recipient- initiated proceedings. If, based on notification by the firm of a change in its circumstances or other
information that comes to your attention, you determine that there is reasonable cause to believe that a currently
certified firm is ineligible, you must provide written notice to the firm that you propose to find the firm ineligible,
setting forth the reasons for the proposed determination. The statement of reasons for the finding of reasonable cause
must specifically reference the evidence in the record on which each reason is based.
(c) DOT directive to initiate proceeding. (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.
(2) The concerned operating administration must provide you and the firm a notice setting forth the reasons for the
directive, including any relevant documentation or other information.
(3) You must immediately commence and prosecute a proceeding to remove eligibility as provided by paragraph (b)
of this section.
(d) Hearing. When you notify a firm that there is reasonable cause to remove its eligibility, as provided in paragraph
(a), (b), or (c) of this section, you must give the firm an opportunity for an informal hearing, at which the firm may
respond to the reasons for the proposal to remove its eligibility in person and provide information and arguments
concerning why it should remain certified.
Yakima DBE Program Page 53 of 60
(1) In such a proceeding, you bear the burden of proving, by a preponderance firm does not
O P g� Y P g� Y onderance of the evidence, that the P P
meet the certification standards of this part.
(2) You must maintain a complete record of the hearing, by any means acceptable under state law for the retention
of a verbatim record of an administrative hearing. If there is an appeal to DOT under §26.89, you must provide a
transcript of the hearing to DOT and, on request, to the firm. You must retain the original record of the hearing. You
may charge the firm only for the cost of copying the record.
(3) The firm may elect to present information and arguments in writing, without going to a hearing. In such a
situation, you bear the same burden of proving, by a preponderance of the evidence, that the firm does not meet the
certification standards, as you would during a hearing.
(e) Separation of functions. You must ensure that the decision in a proceeding to remove a firm's eligibility is made
by an office and personnel that did not take part in actions leading to or seeking to implement the proposal to
remove the firm's eligibility and are not subject, with respect to the matter, to direction from the office or personnel
who did take part in these actions.
(1) Your method of implementing this requirement must be made part of your DBE program.
(2) The decisionmaker must be an individual who is knowledgeable about the certification requirements of your
DBE program and this part.
(3) Before a UCP is operational in its state, a small airport or small transit authority ( i.e. , an airport or transit
authority serving an area with less than 250,000 population) is required to meet this requirement only to the extent
feasible.
(f) Grounds for decision. You must not base a decision to remove eligibility on a reinterpretation or changed opinion
of information available to the recipient at the time of its certification of the firm. You may base such a decision
only on one or more of the following:
(1) Changes in the firm's circumstances since the certification of the firm by the recipient that render the firm unable
to meet the eligibility standards of this part;
(2) Information or evidence not available to you at the time the firm was certified;
(3) Information that was concealed or misrepresented by the firm in previous certification actions by a recipient;
(4) A change in the certification standards or requirements of the Department since you certified the firm; or
(5) A documented finding that your determination to certify the firm was factually erroneous.
(g) Notice of decision. Following your decision, you must provide the firm written notice of the decision and the
reasons for it, including specific references to the evidence in the record that supports each reason for the decision.
The notice must inform the firm of the consequences of your decision and of the availability of an appeal to the
Department of Transportation under §26.89. You must send copies of the notice to the complainant in an
ineligibility complaint or the concerned operating administration that had directed you to initiate the proceeding.
(h) [Reserved]
(i) Status of firm during proceeding. (1) A firm remains an eligible DBE during the pendency of your proceeding to
remove its eligibility.
(2) The firm does not become ineligible until the issuance of the notice provided for in paragraph (g) of this section.
(j) Effects of removal of eligibility. When you remove a firm's eligibility, you must take the following action:
Yakima DBE Program Page 54 of 60
(1) When a prime contractor has made a commitment to using the ineligible firm, or you have made a commitment
to using a DBE prime contractor, but a subcontract or contract has not been executed before you issue the
decertification notice provided for in paragraph (g) 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
(2) If a prime contractor has executed a subcontract with the firm before you have notified the firm of its
ineligibility, the prime contractor may continue to use the firm on the contract and may continue to receive credit
toward its DBE goal for the firm's work. In this case, or in a case where you have let a prime contract to the DBE
that was later ruled ineligible, the portion of the ineligible firm's performance of the contract remaining after you
issued the notice of its ineligibility shall not count toward your overall goal, but may count toward the contract goal.
(3) Exception: If the DBE's ineligibility is caused solely by its having exceeded the size standard during the
performance of the contract, you may continue to count its participation on that contract toward overall and contract
goals.
(k) Availability of appeal. When you make an administratively final removal of a firm's eligibility under this section,
the firm may appeal the removal to the Department under §26.89
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003; 76 FR 5101, Jan. 28, 2011]
§ 26.89 What is the process for certification appeals to the Department of Transportation?
(a)(1) If you are a firm that is denied certification or whose eligibility is removed by a recipient, including SBA -
certified firms applying pursuant to the DOT /SBA MOU, you may make an administrative appeal to the
Department.
(2) If you are a complainant in an ineligibility complaint to a recipient (including the concerned operating
administration in the circumstances provided in §26.87(c)), you may appeal to the Department if the recipient does
not find reasonable cause to propose removing the firm's eligibility or, following a removal of eligibility proceeding,
determines that the firm is eligible.
(3) Send appeals to the following address: Department of Transportation, Office of Civil Rights, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
(b) Pending the Department's decision in the matter, the recipient's decision remains in effect. The Department does
not stay the effect of the recipient's decision while it is considering an appeal.
(c) If you want to file an appeal, you must send a letter to the Department within 90 days of the date of the
recipient's final decision, including information and arguments concerning why the recipient's decision should be
reversed. The Department may accept an appeal filed later than 90 days after the date of the decision if the
Department determines that there was good cause for the late filing of the appeal.
(1) If you are an appellant who is a firm which has been denied certification, whose certification has been removed,
whose owner is determined not to be a member of a designated disadvantaged group, or concerning whose owner
the presumption of disadvantage has been rebutted, your letter must state the name and address of any other
recipient which currently certifies the firm, which has rejected an application for certification from the firm or
removed the firm's eligibility within one year prior to the date of the appeal, or before which an application for
certification or a removal of eligibility is pending. Failure to provide this information may be deemed a failure to
cooperate under §26.109(c).
(2) If you are an appellant other than one described in paragraph (c)(1) of this section, the Department will request,
and the firm whose certification has been questioned shall promptly provide, the information called for in paragraph
(c)(1) of this section. Failure to provide this information may be deemed a failure to cooperate under §26.109(c).
(d) When it receives an appeal, the Department requests a copy of the recipient's complete administrative record in
the matter. If you are the recipient, you must provide the administrative record, including a hearing transcript, within
Yakima DBE Program Page 55 of 60
20 days of the Department's request. The Department may extend this time period on the basis of a recipient's
showing of good cause. To facilitate the Department's review of a recipient's decision, you must ensure that such
administrative records are well organized, indexed, and paginated. Records that do not comport with these
requirements are not acceptable and will be returned to you to be corrected immediately. If an appeal is brought
concerning one recipient's certification decision concerning a firm, and that recipient relied on the decision and/or
administrative record of another recipient, this requirement applies to both recipients involved.
(e) The Department makes its decision based solely on the entire administrative record. The Department does not
make a de novo review of the matter and does not conduct a hearing. The Department may supplement the
administrative record by adding relevant information made available by the DOT Office of Inspector General;
Federal, state, or local law enforcement authorities; officials of a DOT operating administration or other appropriate
DOT office; a recipient; or a firm or other private party.
(f) As a recipient, when you provide supplementary information to the Department, you shall also make this
information available to the firm and any third -party complainant involved, consistent with Federal or applicable
state laws concerning freedom of information and privacy. The Department makes available, on request by the firm
and any third -party complainant involved, any supplementary information it receives from any source.
(1) The Department affirms your decision unless it determines, based on the entire administrative record, that your
decision is unsupported by substantial evidence or inconsistent with the substantive or procedural provisions of this
part concerning certification.
(2) If the Department determines, after reviewing the entire administrative record, that your decision was
unsupported by substantial evidence or inconsistent with the substantive or procedural provisions of this part
concerning certification, the Department reverses your decision and directs you to certify the firm or remove its
eligibility, as appropriate. You must take the action directed by the Department's decision immediately upon
receiving written notice of it.
(3) The Department is not required to reverse your decision if the Department determines that a procedural error did
not result in fundamental unfairness to the appellant or substantially prejudice the opportunity of the appellant to
present its case.
(4) If it appears that the record is incomplete or unclear with respect to matters likely to have a significant impact on
the outcome of the case, the Department may remand the record to you with instructions seeking clarification or
augmentation of the record before making a finding. The Department may also remand a case to you for further
proceedings consistent with Department instructions concerning the proper application of the provisions of this part.
(5) The Department does not uphold your decision based on grounds not specified in your decision.
(6) The Department's decision is based on the status and circumstances of the firm as of the date of the decision
being appealed.
(7) The Department provides written notice of its decision to you, the firm, and the complainant in an ineligibility
complaint. A copy of the notice is also sent to any other recipient whose administrative record or decision has been
involved in the proceeding ( see paragraph (d) of this section). The Department will also notify the SBA in writing
when DOT takes an action on an appeal that results in or confirms a loss of eligibility to any SBA - certified firm.
The notice includes the reasons for the Department's decision, including specific references to the evidence in the
record that supports each reason for the decision.
(8) The Department's policy is to make its decision within 180 days of receiving the complete administrative record.
If the Department does not make its decision within this period, the Department provides written notice to concerned
parties, including a statement of the reason for the delay and a date by which the appeal decision will be made.
(g) All decisions under this section are administratively final, and are not subject to petitions for reconsideration.
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 68 FR 35556, June 16, 2003; 73 FR 33329,
June 12, 2008]
Yakima DBE Program Page 56 of 60
§ 26.91 What actions do recipients take following DOT certification appeal decisions?
(a) If you are the recipient from whose action an appeal under §26.89 is taken, the decision is binding. It is not
binding on other recipients.
(b) If you are a recipient to which a DOT determination under §26.89 is applicable, you must take the following
action:
(1) If the Department determines that you erroneously certified a firm, you must remove the firm's eligibility on
receipt of the determination, without further proceedings on your part. Effective on the date of your receipt of the
Department's determination, the consequences of a removal of eligibility set forth in §26.87(i) take effect.
(2) If the Department determines that you erroneously failed to find reasonable cause to remove the firm's eligibility,
you must expeditiously commence a proceeding to determine whether the firm's eligibility should be removed, as
provided in §26.87.
(3) If the Department determines that you erroneously declined to certify or removed the eligibility of the firm, you
must certify the firm, effective on the date of your receipt of the written notice of Department's determination.
(4) If the Department determines that you erroneously determined that the presumption of social and economic
disadvantage either should or should not be deemed rebutted, you must take appropriate corrective action as
determined by the Department.
(5) If the Department affirms your determination, no further action is necessary.
(c) Where DOT has upheld your denial of certification to or removal of eligibility from a firm, or directed the
removal of a firm's eligibility, other recipients with whom the firm is certified may commence a proceeding to
remove the firm's eligibility under §26.87. Such recipients must not remove the firm's eligibility absent such a
proceeding. Where DOT has reversed your denial of certification to or removal of eligibility from a firm, other
recipients must take the DOT action into account in any certification action involving the firm. However, other
recipients are not required to certify the firm based on the DOT decision.
Subpart F - Compliance and Enforcement
§ 26.101 What compliance procedures apply to recipients?
(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 Federal funds, or refusal to approve projects, grants or contracts until deficiencies are
remedied. Program sanctions may include, in the case of the FHWA program, actions provided for under 23 CFR
1.36; in the case of the FAA program, actions consistent with 49 U.S.C. 47106(d), 47111(d), and 47122; and in the
case of the FTA program, any actions permitted under 49 U.S.C. chapter 53 or applicable FTA program
requirements.
(b) As provided in statute, you will not be subject to compliance actions or sanctions for failing to carry out any
requirement of this part because you have been prevented from complying because a Federal court has issued a final
order in which the court found that the requirement is unconstitutional.
§ 26.103 What enforcement actions apply in FHWA and FTA programs?
The provisions of this section apply to enforcement actions under FHWA and FTA programs:
(a) Noncompliance complaints. Any person who believes that a recipient has failed to comply with its obligations
under this part may file a written complaint with the concerned operating administration's Office of Civil Rights. If
you want to file a complaint, you must do so no later than 180 days after the date of the alleged violation or the date
on which you learned of a continuing course of conduct in violation of this part. In response to your written request,
the Office of Civil Rights may extend the time for filing in the interest of justice, specifying in writing the reason for
Yakima DBE Program Page 57 of 60
so doing. The Office of Civil Rights may protect the confidentiality of your identity as provided in §26.109(b).
Complaints under this part are limited to allegations of violation of the provisions of this part.
(b) Compliance reviews. The concerned operating administration may review the recipient's compliance with this
part at any time, including reviews of paperwork and on -site reviews, as appropriate. The Office of Civil Rights may
direct the operating administration to initiate a compliance review based on complaints received.
(c) Reasonable cause notice. If it appears, from the investigation of a complaint or the results of a compliance
review, that you, as a recipient, are in noncompliance with this part, the appropriate DOT office promptly sends you,
return receipt requested, a written notice advising you that there is reasonable cause to find you in noncompliance.
The notice states the reasons for this finding and directs you to reply within 30 days concerning whether you wish to
begin conciliation.
(d) Conciliation. (1) If you request conciliation, the appropriate DOT office shall pursue conciliation for at least 30,
but not more than 120, days from the date of your request. The appropriate DOT office may extend the conciliation
period for up to 30 days for good cause, consistent with applicable statutes.
(2) If you and the appropriate DOT office sign a conciliation agreement, then the matter is regarded as closed and
you are regarded as being in compliance. The conciliation agreement sets forth the measures you have taken or will
take to ensure compliance. While a conciliation agreement is in effect, you remain eligible for FHWA or FTA
financial assistance.
(3) The concerned operating administration shall monitor your implementation of the conciliation agreement and
ensure that its terms are complied with. If you fail to carry out the terms of a conciliation agreement, you are in
noncompliance.
(4) If you do not request conciliation, or a conciliation agreement is not signed within the time provided in
paragraph (d)(1) of this section, then enforcement proceedings begin.
(e) Enforcement actions. (1) Enforcement actions are taken as provided in this subpart.
(2) Applicable findings in enforcement proceedings are binding on all DOT offices.
§ 26.105 What enforcement actions apply in FAA programs?
(a) Compliance with all requirements of this part by airport sponsors and other recipients of FAA financial
assistance is enforced through the procedures of Title 49 of the United States Code, including 49 U.S.C. 47106(d),
47111(d), and 47122, and regulations implementing them.
(b) The provisions of §26.103(b) and this section apply to enforcement actions in FAA programs.
(c) Any person who knows of a violation of this part by a recipient of FAA funds may file a complaint under 14
CFR part 16 with the Federal Aviation Administration Office of Chief Counsel.
§ 26.107 What enforcement actions apply to firms participating in the DBE program?
(a) If you are a firm that does not meet the eligibility criteria of subpart D of this part and that attempts to participate
in a DOT - assisted program as a DBE on the basis of false, fraudulent, or deceitful statements or representations or
under circumstances indicating a serious lack of business integrity or honesty, the Department may initiate
suspension or debarment proceedings against you under 2 CFR parts 180 and 1200.
(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 2 CFR parts 180 and
1200.
Yakima DBE Program Page 58 of 60
(c) In a suspension or debarment proceeding brought under paragraph (a) or (b) of this section, the concerned
operating administration may consider the fact that a purported DBE has been certified by a recipient. Such
certification does not preclude the Department from determining that the purported DBE, or another firm that has
used or attempted to use it to meet DBE goals, should be suspended or debarred.
(d) The Department may take enforcement action under 49 CFR Part 31, Program Fraud and Civil Remedies, against
any participant in the DBE program whose conduct is subject to such action under 49 CFR part 31.
(e) The Department may refer to the Department of Justice, for prosecution under 18 U.S.C. 1001 or other
applicable provisions of law, any person who makes a false or fraudulent statement in connection with participation
of a DBE in any DOT - assisted program or otherwise violates applicable Federal statutes.
[64 FR 5126, Feb 2, 1999, as amended at 76 FR 5101, Jan. 28, 2011]
§ 26.109 What are the rules governing information, confidentiality, cooperation, and intimidation or
retaliation?
(a) Availability of records. (1) In responding to requests for information concerning any aspect of the DBE program,
the Department complies with provisions of the Federal Freedom of Information and Privacy Acts (5 U.S.C. 552 and
552a). The Department may make available to the public any information concerning the DBE program release of
which is not prohibited by Federal law.
(2) Notwithstanding any provision of Federal or state law, you must not release any information that may reasonably
be construed as confidential business information to any third party without the written consent of the firm that
submitted the information. This includes applications for DBE certification and supporting information. However,
you must transmit this information to DOT in any certification appeal proceeding under §26.89 of this part or to any
other state to which the individual's firm has applied for certification under §26.85 of this part.
(b) Confidentiality of information on complainants. Notwithstanding the provisions of paragraph (a) of this section,
the identity of complainants shall be kept confidential, at their election. If such confidentiality will hinder the
investigation, proceeding or hearing, or result in a denial of appropriate administrative due process to other parties,
the complainant must be advised for the purpose of waiving the privilege. Complainants are advised that, in some
circumstances, failure to waive the privilege may result in the closure of the investigation or dismissal of the
proceeding or hearing. FAA follows the procedures of 14 CFR part 16 with respect to confidentiality of information
in complaints.
(c) Cooperation. 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. Failure to do so shall be a ground for
appropriate action against the party involved (e.g., with respect to recipients, a finding of noncompliance; with
respect to DBE firms, denial of certification or removal of eligibility and/or suspension and debarment; with respect
to a complainant or appellant, dismissal of the complaint or appeal; with respect to a contractor which uses DBE
firms to meet goals, findings of non - responsibility for future contracts and/or suspension and debarment).
(d) Intimidation and retaliation. If you are a recipient, contractor, or any other participant in the program, you must
not intimidate, threaten, coerce, or discriminate against any individual or firm for the purpose of interfering with any
right or privilege secured by this part or because the individual or firm has made a complaint, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this part. If you violate this prohibition,
you are in noncompliance with this part.
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35556, June 16, 2003; 76 FR 5101, Jan. 28, 2011]
Yakima DBE Program Page 59 of 60
Attachment 7
Personnel Inventory Form
* Return with Bid Proposal *
Firm Name: Contact Person
Address: Phone Number:
City: State: Zip
Type of Service Provided: Age of your Company:
Are you a certified DBE or WMBE ?: YES NO
If yes, what is your certification number? #
List Annual Gross Receipts of Firm: $
Does your business meet Small Business administration criteria? _yes no If yes, indicate your firm's size
and gross receipts below
Contractor's Entire Workforce - if you need additional space, photo copy this section and attach it to this
form.
Occupation Total Total Black Asian Native Hispanic Apprentice
Employed Minorities American Trainee
M F M F M F M F M F M F M F
Officers
Foremen
Clerical
Totals:
Goals for minorities and women employees in the contractor's and subcontractor's workforce are _% combined.
Contractors and subcontractors do not have to fire or lay off employees to meet these goals; however, if new employees
are hired, it shall be an obligation to make a good faith effort to hire qualified minorities and women.
Yakima DBE Program Page 60 of 60
"
( tg.''
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT 1 L
Item No. l i
For Meeting of: March 6, 2012
ITEM TITLE: Resolution amending Yakima Transit's Disadvantaged
Business Enterprise Program, as required by the
Federal Transit Administration's regulations (49 CFR
Part 26).
SUBMITTED BY: Chris Waarvick, Public Works Director, 576 -6411
CONTACT Ken Mehin, Transit Manager, 576 -6415
PERSON/TELEPHONE:
SUMMARY EXPLANATION:
On January 28, 2011, the Federal Transit Administration (FTA) modified their
regulations as they relate to the Disadvantaged Business Enterprise Program. As
part of those updates, the FTA mandated transit agencies to update their programs
to specifically include a section to Foster Small Business Participation (49 CFR
26.39).
Yakima Transit has made the required updates and updated other information in the
document related to management changes with the City of Yakima and other
Program changes that went into effect on January 28, 2011.
Resolution X Ordinance Other Plan
(specify)
Contract: Mail to:
Contract Term: Amount: Expiration Date:
Insurance Required? No
Funding Phone:
Source:
APPROVED FOR
SUBMITTAL: City Manager
STAFF RECOMMENDATION: /?2&"4 c ,e070 — .c7
Adopt the resolution updating Yakima Transit's DBE Program
BOARD /COMMISSION RECOMMENDATION:
The City Council Transit Committee is aware of the requirement for Yakima Transit
to comply with the FTA with regard to Disadvantaged Business Enterprises.
ATTACHMENTS:
Click to download
❑ RESOLUTION - DBE 2012
❑ 2012 DBE Program