HomeMy WebLinkAbout2018-02-13 Meeting Minutes Administrative Services Committee Meeting Commission Chamber - 2/13/2018
ATTENDANCE:
Present: Hons. M. Williams, Chairman; Jefferson, Vice Chairman; D.
Williams, member.
Absent: Hon. Hardie Davis, Jr., Mayor; Davis, member.
ADMINISTRATIVE SERVICES
1. Adopt the 2018 Augusta, Georgia Disadvantaged Business Enterprise (DBE)
Policy Statement and Program for USDOT Federal Transit Administration
(FTA) funded projects.
Item
Action:
Approved
Motions
Motion
Type Motion Text Made By Seconded By Motion
Result
Approve
Motion to
approve.
Motion Passes 3-
0.
Commissioner
Dennis Williams
Commissioner
Andrew Jefferson Passes
2. Motion to approve merging two part-time positions to create one full-time
Communication Specialist Position.
Item
Action:
Approved
Motions
Motion
Type Motion Text Made By Seconded By Motion
Result
Approve
Motion to
approve.
Motion Passes 3-
0.
Commissioner
Dennis Williams
Commissioner
Andrew Jefferson Passes
3. Approval for HCD to publish advertisement for a 15-day Public Comment per
the Citizen Participation Plan and submit the 2017 Consolidated Annual
Performance and Evaluation Report (CAPER) report to HUD thereafter once
Item
Action:
Approved
comments are received with no return to Commission.
Motions
Motion
Type Motion Text Made By Seconded By Motion
Result
Approve
Motion to
approve.
Motion Passes 3-
0.
Commissioner
Dennis Williams
Commissioner
Andrew Jefferson Passes
4. Motion to approve the minutes of the Administrative Services Committee held
on January 30, 2018.
Item
Action:
Approved
Motions
Motion
Type Motion Text Made By Seconded By Motion
Result
Approve
Motion to
approve.
Motion Passes 3-
0.
Commissioner
Dennis Williams
Commissioner
Marion Williams Passes
5. Motion to approve amendment to Probation Services Order to adjust the
experience categories for the Chief Probation Officer.
Item
Action:
Rescheduled
Motions
Motion
Type
Motion
Text Made By Seconded
By
Motion
Result
Approve Motion to
approve.
Commissioner
Dennis Williams
Dies for lack
of Second
Motions
Motion
Type Motion Text Made By Seconded By Motion
Result
Defer
Substitute motion to
refer this item to the full
Commission with no
recommendation and
bring back some
additional information
regarding the change.
Motion Passes 3-0.
Commissioner
Andrew
Jefferson
Commissioner
Marion
Williams
Passes
www.augustaga.gov
6. Approve a remedy/solution regarding pay differentials between staff attorneys
assigned to certain city departments (Requested by Commissioner Marion
Williams)
Item
Action:
Approved
Motions
Motion
Type Motion Text Made By Seconded By Motion
Result
Approve
Motion to approve tasking
the Administrator with
reviewing the criteria for
the career ladders that Mr.
MacKenzie presented and
come back with a
recommendation on
whether that criteria needs
to be adjusted.
Motion Passes 3-0.
Commissioner
Andrew
Jefferson
Commissioner
Marion
Williams
Passes
Administrative Services Committee Meeting
2/13/2018 1:15 PM
Attendance 2/13/18
Department:
Presenter:
Caption:
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
AUGUSTA, GEORGIA
DISADVANTAGED BUSINESS ENTERPRISE (DBE)
PROGRAM
FOR
AUGUSTA PUBLIC TRANSIT
FEDERAL TRANSIT ADMINISTRATION (FTA)
US DEPARTMENT OF TRANSPORTATION
AUGUSTA, GEORGIA | augustaga.gov
Recipient ID: 2016
535 Telfair Street, Augusta, GA 30901
Kellie S. Irving, Compliance Department Director (DBELO)
Email: kirving@augustaga.gov - (706) 826-1325 | f: (706) 823-4395
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AUGUSTA, GEORGIA
DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
POLICY STATEMENT
Policy Statement (§26.1, §26.23)
Augusta, Georgia (Augusta, Georgia) has established a Disadvantaged Business Enterprise
(DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT),
49 Code of Federal Regulations (CFR) Part 26. Augusta, Georgia has received federal financial
assistance from the Department of Transportation, and as a condition of receiving this assistance,
Augusta, Georgia has signed an assurance that it will comply with 49 CFR Part 26.
It is the policy of Augusta, Georgia to ensure that DBEs, as defined in Part 26, have an equal
opportunity to receive and participate in DOT-assisted contracts. It is also 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 marketplace
outside the DBE program.
Kellie S. Irving, Compliance Department Director, is Augusta, Georgia’s DBE Liaison Officer
and 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
Augusta, Georgia in its financial assistance agreements with the DOT.
Augusta, Georgia has disseminated this policy statement to its Board of Commissioners and
Mayor and all of the departments of its organization. Augusta, Georgia has distributed this
statement to DBE and non-DBE business communities that perform work for Augusta, Georgia
on DOT-assisted contracts. Distribution of this policy statement is publicly displayed on our
organization’s website, procurement contracting documents, and annual written notification to
all vendors via U.S. Mail and/or email.
_
Mayor Hardie Davis, Jr. Date
Augusta, Georgia
Commission Adopted: TBD
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SUBPART A – GENERAL REQUIREMENTS
Objectives (§26.1, §26.23)
Augusta, Georgia ensures that DBEs defined in 49 CFR Part 26 have an equal
opportunity to receive and participate in DOT-assisted contracts. It is also its 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 marketplace
outside the DBE program.
Applicability (§26.3)
Augusta, Georgia is the recipient of federal transit funds authorized by Titles I, III, V and VI of
ISTEA, Pub. L. 102-240; or Titles I, II, and V of the Teas-21, Pub. L. 105-178; or by Federal
transit laws in 49 U.S.C. Chapter 53.
Applications
This Augusta, Georgia DBE Program for U.S. DOT – Federal Transit Administration is only
applicable to assisted federal funded contracts and other state funded contracts having mandatory
DBE requirements. All U.S. DOT funded projects are subject to the requirements of 49 CFR Part
26. These requirements are mandatory and non-negotiable.
Augusta, Georgia enforces all DBE requirements and/or State Agencies in accordance with
Federal and State laws.
The U.S. District Court for the Southern District of Georgia has entered an Order enjoining a
RACE-BASED portion of Augusta, Georgia’s (local) DBE Program. A copy of this Order can be
obtained at http://www.augustaga.gov/index.aspx?NID=1448.
Thus, Augusta, Georgia does not have or operate a (local) DBE, Minority Business Enterprise
(MBE) or Woman Owned Business Enterprise (WBE) program for projects (or portions of
projects) having Augusta, Georgia as the source of funding.
Definitions (§26.5)
Augusta, Georgia will adopt the definitions contained in 49 CFR Section 26.5 for this
program. The definitions of 49 CFR Section 26.5 are outlined in Attachment 2.
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Non-Discrimination Requirements (§26.7)
Augusta, Georgia 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, Augusta, Georgia 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.
Record-Keeping Requirements (§26.11)
Uniform Report of DBE Awards or Commitments and Payments
Augusta, Georgia will report DBE participation to the Federal Transit Administration (FTA)
using the Uniform Report of DBE Awards or Commitments and Payments, found in
Appendix B to the DBE regulation. This report is due December 1 and June 1 each year.
Bidders List
Augusta, Georgia 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 bidder’s list approach to calculating overall goals. The bidders list will include
the name, address, DBE/non-DBE status, age of firms, and annual gross receipts of firms.
Augusta, Georgia will collect this information in the following ways:
1. A contract clause requiring prime bidders to report the names/addresses, and possibly
other information, of all firms who quote to them on subcontracts;
2. An Augusta, Georgia -directed survey of a statistically sound sample of firms on a
name/address list to get age of firm/size information;
3. A notice in all solicitations, and otherwise widely disseminated documents, requesting
firms quoting on subcontracts to report information directly to Augusta, Georgia.
Assurances (§26.13)
Augusta, Georgia has signed the following assurances, applicable to all DOT-assisted
contracts and their administration:
Federal Financial Assistance Agreement Assurance
Augusta, Georgia 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
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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
AUGUSTA, GEORGIA 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 subrecipients.
Contract Assurance
Augusta, Georgia will ensure that the following clause is placed in every DOT-assisted
contract and subcontract:
The contractor, subrecipient, 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
DBE Program Update (§26.21)
Since Augusta, Georgia has received a grant of $250,000 or more in FTA planning capital,
and/or operating assistance in a federal fiscal year, Augusta, Georgia will continue to carry out
this program until all funds from DOT financial assistance have been expended. Augusta,
Georgia will provide to DOT updates representing significant changes in the program.
DBE Liaison Officer (§26.25)
Augusta, Georgia’s DBE Liaison Officer may be contacted at:
Kellie S. Irving
Compliance Department Director
Augusta, Georgia
535 Telfair Street, Suite 710
706.826.1325
kirving@augustga.gov
www.augustaga.gov
In that capacity, the DBE Liaison Officer (DBELO) is responsible for implementing all aspects
of the DBE program and ensuring that Augusta, Georgia complies with all provision of 49 CFR
Part 26. The DBELO has direct, independent access to the Board of Commissioners and
Mayor, concerning DBE program matters. An organization chart displaying the DBELO’s
position in the organization is found in Attachment 3 to this program.
The DBELO is responsible for developing, implementing and monitoring the DBE program, in
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coordination with other appropriate officials. The duties and responsibilities include the
following:
1. Gathers and reports statistical data and other information as required by DOT.
2. Reviews third-party contracts and purchase requisitions for compliance with this
program.
3. Works with all departments to set overall annual 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 Augusta, Georgia’s progress toward attainment and identifies ways to improve
progress.
7. Participates in pre-bid meetings.
8. Advises the Board of Commissioners and Mayor 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. Verifies DBE certifications according to the criteria set by DOT and certified through the
Uniform Certification Process (UCP) in Georgia.
12. Provides outreach to DBEs and community organizations to advise them of opportunities.
13. Maintains Augusta, Georgia’s updated directory on certified DBEs.
DBE Financial Institutions (§26.27)
It is the policy of Augusta, Georgia 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.
At this time, Augusta, Georgia has not identified DBE-owned financial institutions. However,
AUGUSTA, GEORGIA encourages contractors to use the services of minority and women-
owned financial institutions. AUGUSTA, GEORGIA will evaluate financial institutions owned
and controlled by socially and economically disadvantaged individuals, and update the list bi-
annually. A listing of minority-owned banks from the Federal Reserve Bank can be found at:
https://www.federalreserve.gov/Releases/mob/current/default.htm. Augusta, Georgia has
identified and provided the contact information of the minority-owned financial institutions
listed in Attachment 4.
Prompt Payment Mechanisms (§26.29)
Prompt Payment: §26.29(a)
AUGUSTA, GEORGIA 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 AUGUSTA, GEORGIA. Any delay or
postponement of payment from the above referenced timeframe may occur only for good
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cause following written approval of AUGUSTA, GEORGIA. This clause applies to both
DBE and non-DBE subcontracts.
Retainage: §26.29(b)
The prime contractor agrees 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 AUGUSTA, GEORGIA. This clause applies to both
DBE and non-DBE subcontracts.
Monitoring and Enforcement: §26.29(d)
AUGUSTA, GEORGIA has established the following mechanism to monitor and enforce
prompt payment and return of retainage. AUGUSTA, GEORGIA shall place the following
language in all federally funded contracts:
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 already performed.
AUGUSTA, GEORGIA’s DBELO will conduct regular project site visits to monitor and confirm
DBEs assigned to perform work on federally-funded projects. AUGUSTA, GEORGIA’s DBELO
shall have final sign-off to ensure all DBE payments and retainage is in fact occurring.
Directory (§26.31)
AUGUSTA, GEORGIA maintains a directory identifying 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. AUGUSTA, GEORGIA
will revise the DBE Directory every fiscal quarter, which is downloaded from the Georgia
Unified Certification Program (GDOT) Directory. AUGUSTA, GEORGIA will make the
Directory available as follows: GDOT Directory linked to AUGUSTA, GEORGIA website, or
an electronic copy, upon written request. The GDOT DBE Directory’s link is listed in
Attachment 5 to this program document.
Overconcentration (§26.33)
AUGUSTA, GEORGIA has not identified that overconcentration exists in the types of work that
DBEs perform.
Business Development Programs (§26.35)
AUGUSTA, GEORGIA has not established a business development program. AUGUSTA,
GEORGIA will re-evaluate the need for such a program every two years.
Monitoring and Enforcement Mechanisms (§26.37)
AUGUSTA, GEORGIA will take the following monitoring and enforcement mechanisms to
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ensure compliance with 49 CFR Part 26.
1. AUGUSTA, GEORGIA will bring to the attention of the DOT 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 26.109.
2. AUGUSTA, GEORGIA will consider similar action under AUGUSTA, GEORGIA’s
own legal authorities, including responsibility determinations in future contracts.
Attachment 6 lists the regulation, provisions, and contract remedies available to
AUGUSTA, GEORGIA in the events of non-compliance with the DBE regulations by a
participant in AUGUSTA, GEORGIA’s procurement activities.
3. AUGUSTA, GEORGIA 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 requiring prime contractors to submit monthly
Subcontracting Performance Reports to the DBELO for utilization auditing and
participation levels. This will occur for each contract/project on which DBEs are
participating. AUGUSTA, GEORGIA’s Monthly Subcontractors Paid Report is
provided in Appendix A of this document.
4. AUGUSTA, GEORGIA will keep a running tally of actual payments to DBE firms
for work committed to them at the time of contract award.
Small Business Participation (§26.39)
AUGUSTA, GEORGIA is committed to fostering small businesses (both DBEs and non-DBEs)
participation in its DBE program, in order to facilitate competition on DOT-assisted projects.
AUGUSTA, GEORGIA is developing a Small Business Enterprise (SBE) Program which will
be implemented in January 2019. The small business program participation strategies will
include the following elements (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.
As part of this program element, AUGUSTA, GEORGIA will utilize the following strategies
(as listed in the DBE Rule Change of January 2011):
(1) Establish small business contract goals on contracts meeting small business contracting
criteria;
(2) Require 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 (on prime contracts not having DBE contract goals);
(3) Meet the portion of projected overall goal through race-neutral measures by ensuring that a
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reasonable number of prime contracts are of a size that small businesses, including DBEs, can
reasonably perform.
AUGUSTA, GEORGIA’s SBE program will not certify small businesses, however, will
recognize and accept small businesses certified as SBEs by government agencies in the region,
including but not limited to: Small Business Administration (SBA), Georgia Department of
Transportation (GDOT), City of Atlanta, City of Savannah, and MARTA.
SUBPART C – GOALS, GOOD FAITH EFFORTS AND COUNTING
Set-Asides or Quotas (§26.43)
AUGUSTA, GEORGIA does not use quotas in any way in the administration of this DBE
program.
Overall Goals (§26.45)
In accordance with Section 26.45, AUGUSTA, GEORGIA will submit its triennial overall DBE
goal to the FTA on August 1 of the year specified by the FTA.
AUGUSTA, GEORGIA will also request use of project-specific DBE goals as appropriate,
and/or will establish project-specific DBE goals as directed by the FTA.
The process used by AUGUSTA, GEORGIA to establish the overall DBE goal is a two-step
process. According to the USDOT Tips for Goal Setting (USDOT Tips), approved by the
General Counsel of the USDOT, the recipient must first determine a base figure for the relative
availability of certified DBEs and potentially certified Minority and Woman-owned Business
Enterprises in the relevant market area. Next, AUGUSTA, GEORGIA must examine all relevant
evidence to determine what adjustment, if any, is needed to the base figure in order to arrive at
an overall goal. The final adjusted figure is the recipient’s overall goal, and represents the
proportion of federal transportation funding that the recipient is expected to allocate to DBEs
during the subsequent three federal fiscal years (FFY). Once the adjusted overall goal is
determined, the process requires considering what portion of the goal will be met by race and
gender-neutral measures. If AUGUSTA, GEORGIA purports that it can meet its overall goal
with race and gender-neutral measures, those measures must be utilized. In contrast, if
AUGUSTA, GEORGIA determines it cannot achieve the entire overall goal using only race and
gender- neutral measures, it must establish a race and gender-conscious portion of the overall
goal.
AUGUSTA, GEORGIA implemented a race-neutral Disadvantaged Business Enterprise (DBE)
program in accordance with directives issued by the Department of Transportation. As a result of
the Ninth Circuit’s Western States decision, the FTA issued a Notice (guidance) (Docket No.
FTA-2006- 24063) on March 23, 2006, stipulating a Notice of New Policy implementation and
requests for comments to Public Transportation Providers regarding DOT’s DBE Program.
AUGUSTA, GEORGIA defined its local market area as the Augusta-Richmond County. This is
the area in which the substantial majority of the contractors and subcontractors with which
AUGUSTA, GEORGIA does business are located; and the area in which AUGUSTA, GEORGIA
spends the substantial majority of its contracting dollars.
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The two-step goal-setting process required by the regulations and the findings in Western States
has been used to determine the recommended overall goal for FFY 2018-2020. The two steps for
setting an overall goal are to:
1. Establish a base figure for the relative availability of DBEs; and
2. Determine the base figure adjustment, if necessary
The base figure is intended to be a measurement of the current ready, willing and able DBEs as a
percentage of all businesses ready, willing and able to perform the recipient’s anticipated FTA-
assisted contracts.
Before establishing the overall goal each year, AUGUSTA, GEORGIA will consult with the
GDOT, recent disparity studies, other transit agencies, U.S. Census data, and random DBEs to
obtain information concerning the availability of disadvantaged and non-disadvantaged
businesses, the effects of discrimination on opportunities for DBEs, and AUGUSTA,
GEORGIA’s efforts to establish a level playing field for the participation of DBEs.
Following this consultation, AUGUSTA, GEORGIA 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 AUGUSTA, GEORGIA and DOT will accept
comments on the goals for 45 days from the date of the notice.
AUGUSTA, GEORGIA’s published Public Notice of the proposed Overall DBE Goal for
FFY 2018-2020 was advertised in the following local market area publications:
Augusta Chronicle
Metro Spirit
Urban Pro
Metro Courier
Additionally, AUGUSTA, GEORGIA uploaded the Overall DBE Goal for the FFY
2018-2020 DOT-assisted contracts to its website for convenient electronic access for
review and comment.
Normally, AUGUSTA, GEORGIA will issue this notice by June 1 of each year. The notice
includes addresses to which comments may be sent and addresses (including offices and
websites) where the proposal may be reviewed.
AUGUSTA, GEORGIA’s overall goal submission to DOT will include: the goal (including
the breakout of estimated race- neutral and race-conscious participation, as appropriate); a
copy of the methodology, worksheets, etc., used to develop the goal; a summary of
information and comments received during this public participation process and AUGUSTA,
GEORGIA’s responses; and proof of publication of the goal in media outlets previously
listed.
AUGUSTA, GEORGIA will begin using its overall goal on October 1 of the specified year,
unless AUGUSTA, GEORGIA has received other instructions from DOT. If AUGUSTA,
GEORGIA establishes a goal on a project basis, it will begin using its goal by the time of the first
solicitation for a DOT-assisted contract for the project. AUGUSTA, GEORGIA’s goal will
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remain effective for the duration of the three-year period established and approved by the FTA.
Goal Setting and Accountability (§26.47)
If the awards and commitments shown on AUGUSTA, GEORGIA’s Uniform Report of Awards
or Commitments and Payments at the end of any fiscal year are less than the overall applicable
to that fiscal year, AUGUSTA, GEORGIA will:
1. Analyze in detail the reason for the difference between the overall goal and the actual
awards/commitments;
2. Establish specific steps and milestones to correct the problems identified in the analysis;
and
3. Submit the plan to the FTA within 90 days of the end of the affected fiscal year.
Transit Vehicle Manufacturers Goals (§26.49)
AUGUSTA, GEORGIA will require each Transit Vehicle Manufacturer (TVM), 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 this section. Alternatively, AUGUSTA,
GEORGIA 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.
Meeting Overall Goals/Contract Goals (§26.51)
AUGUSTA, GEORGIA will meet the maximum feasible portion of its overall goal using
race-neutral means of facilitating DBE participation. In order to do so, AUGUSTA,
GEORGIA will:
Submit timely solicitations, conduct pre-bid meetings/conferences, develop clearly written
plans and specifications, and delivery schedules in ways that facilitate DBEs and other small
business firms’ participation.
Unbundle large contracts to make them more accessible to small businesses; requiring or
encourage Service Providers to subcontract portions of work that they might otherwise
perform with their own work forces.
Provide information and communication on AUGUSTA, GEORGIA contracting
procedures and specific contract opportunities.
Provide assistance through available resources to interested DBEs in obtaining bonding, lines
of credit, and/or insurance requirements.
Upon acceptance of a disparity study supporting the use of contract goals, AUGUSTA,
GEORGIA will use contract goals to meet any portion of the overall goal AUGUSTA,
GEORGIA 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 AUGUSTA, GEORGIA’s overall goal that is not projected to be
met through the use of race-neutral means.
AUGUSTA, GEORGIA will establish contract goals only on those DOT-assisted contracts that
have subcontracting possibilities. AUGUSTA, GEORGIA needs not establish a contract goal on
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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).
AUGUSTA, GEORGIA will express its contract goals as a percentage of the federal
share of a DOT-assisted contract.
Good Faith Efforts Procedures (§26.53)
Award of Contracts with a DBE Contract Goal: §26.53(a)
In those instances where a contract-specific DBE goal is included in a procurement/solicitation,
AUGUSTA, GEORGIA will not award the contract to a bidder who does not either: (1) meet the
contract goal with verified, countable DBE participation; or (2) documents it has made adequate
good faith efforts to meet the DBE contract goal, even though it was unable to do so. It is the
obligation of the bidder to demonstrate it has made sufficient good faith efforts prior to
submission of its bid.
Evaluation of Good Faith Efforts: §26.53(a) & (c)
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 responsive.
The following is a list of types of actions AUGUSTA, GEORGIA will consider as part of the
bidder’s good faith efforts to obtain DBE participation.
A. Soliciting through all reasonable and available means (e.g., attendance at pre-bid meetings,
advertising and/or written notices) the interest of all certified DBEs who have the capability to
perform the work of the contract. The bidder must solicit this interest within sufficient time to
allow the DBEs to respond to the solicitation. The bidder must determine with certainty if the
DBEs are interested by taking appropriate steps to follow up initial solicitations.
B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood
that the DBE goals will be achieved. This includes, where appropriate, breaking out contract
work items into economically feasible units to facilitate DBE participation, even when the prime
contractor might otherwise prefer to perform these work items with its own forces.
C. Providing interested DBEs with adequate information about the plans, specifications, and
requirements of the contract in a timely manner to assist them in responding to a solicitation.
D. (1) Negotiating in good faith with interested DBEs. It is the bidder’s responsibility to make a
portion of the work available to DBE subcontractors and suppliers and to select those portions of
the work or material needs consistent with the available DBE subcontractors and suppliers, so as
to facilitate DBE participation. Evidence of such negotiation includes the names, addresses, and
telephone numbers of DBEs that were considered; a description of the information provided
regarding the plans and specifications for the work selected for subcontracting; and evidence as
to why additional agreements could not be reached for DBEs to perform the work. (2) A bidder
using good business judgment would consider a number of factors in negotiating with
subcontractors, including DBE subcontractors, and would take a firm’s price and capabilities as
well as contract goals into consideration. However, the fact that there may be some additional
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costs involved in finding and using DBEs is not in itself sufficient reason for a bidder’s failure to
meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a
prime contractor to perform the work of a contract with its own organization does not relieve the
bidder of the responsibility to make good faith efforts. Prime contractors are not, however,
required to accept higher quotes from DBEs if the price difference is excessive or unreasonable.
E. Not rejecting DBEs as being unqualified without sound reasons based on a thorough
investigation of their capabilities. The contractor’s standing within its industry, membership in
specific groups, organizations, or associations and political or social affiliations (for example
union vs. non-union employee status) are not legitimate causes for the rejection or non-
solicitation of bids in the contractor’s efforts to meet the project goal.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as
required by the recipient or contractor.
G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies,
materials, or related assistance or services.
H. Effectively using the services of available minority/women community organizations;
minority/women contractors’ groups; local, state, and federal minority/women business
assistance offices; and other organizations as allowed on a case-by-case basis to provide
assistance in the recruitment and placement of DBEs.
AUGUSTA, GEORGIA will ensure that all information is complete and accurate and
adequately documents the bidder’s/offeror’s good faith efforts before AUGUSTA, GEORGIA
commits to the performance of the contract by the bidder/offeror. Good faith efforts forms are
located in Attachment 7.
Information to be Submitted: §26.53(b)
AUGUSTA, GEORGIA treats bidder’s/offeror’s compliance with good faith efforts requirements
as a matter of responsiveness.
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 five (5) days of being informed by AUGUSTA, GEORGIA that a bidder/offeror is not
responsive because it has not documented sufficient good faith efforts, a bidder/offeror may
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request administrative reconsideration. Bidders/offerors should make this request in writing to the
following reconsideration official:
Janice Allen-Jackson
City Administrator
AUGUSTA, GEORGIA
535 Telfair Street, Ninth Floor
706.821.2400
Janice.Jackson@augustaga.gov
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
the reconsideration official to discuss the issue of whether it met the goal or made adequate good
faith efforts to do. AUGUSTA, GEORGIA 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 DOT.
Good Faith Efforts when a DBE is Terminated/Replaced on a Contract with Contract Goals:
§26.53 (e) & (f)
AUGUSTA, GEORGIA requires that prime contractors not terminate a DBE subcontractor listed
on a bid/contract with a DBE contract goal without AUGUSTA, GEORGIA’s prior written
consent. Prior written consent will only be provided where there is “good cause” for termination
of the DBE firm, as established by Section 26.53(f)(3) of the DBE regulation.
Before transmitting to AUGUSTA, GEORGIA its request to terminate, the prime contractor
must give notice in writing to the DBE of its intent to do so. A copy of this notice must be
provided to AUGUSTA, GEORGIA prior to consideration of the request to terminate. The
DBE will then have five (5) days to respond and advise AUGUSTA, GEORGIA of why it
objects to the proposed termination.
In those instances where “good cause” exists to terminate a DBE’s contract, AUGUSTA,
GEORGIA will require the prime 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. AUGUSTA, GEORGIA 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, AUGUSTA, GEORGIA will require the prime contractor to obtain 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, AUGUSTA, GEORGIA’s
14 | P a g e
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.
Race-Conscious 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 AUGUSTA, GEORGIA 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 percent has been established for this contract. The bidder/offeror shall
make good faith efforts, as defined in Appendix A, 49 CFR Part 26 (Attachment 2), 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 bidder’s/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 (6) if the contract goal is not met, evidence of good faith
efforts.
Counting DBE Participation (§26.55)
AUGUSTA, GEORGIA will count DBE participation toward overall and contract goals as
provided in 49 CFR 26.55.
SUBPARTS D & E – CERTIFICATION
Unified Certification Programs (§26.81)
AUGUSTA, GEORGIA is not a certifying agency but is a member of a Unified
Certification Program (UCP) administered by State of Georgia Unified Certification
Program (GDOT). A copy of the participation agreement can be found in Attachment 8.
AUGUSTA, GEORGIA will use and count for DBE credit only those DBE firms certified by
GDOT.
The UCP is a “one-stop shopping” certification program that eliminates the need for a DBE or
Airport Concessions Disadvantaged Business Enterprise (ACDBE) firm to obtain certifications
from multiple agencies within the State. A business certified as a DBE or ACDBE through the
GDOT is automatically accepted by all USDOT recipients in Georgia. The GDOT is charged
with the responsibility of overseeing the certification activities performed by various certifying
agencies, and compiling and maintaining a single statewide database of certified DBEs. The
database is intended to expand the use of DBE and ACDBE firms by maintaining complete and
current information on those businesses and the products and services they can provide to all
USDOT recipients in Georgia.
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As mandated by USDOT in the DBE Program, Final Rule 49 Code of Federal Regulations
(CFR), Parts 23 and 26, all public agencies that receive USDOT federal financial assistance must
participate in a statewide unified certification program. These public agencies, commonly
referred to as “recipients” of USDOT funds, include municipalities, counties, special districts,
airports, transit agencies, and the Georgia Department of Transportation (GDOT).
The GDOT is the agency responsible for certifying DBE firms. You only need to apply for DBE
certification at one agency. If your firm meets the General Criteria for DBE certification as
provided on the Application Package, submit your completed application, along with the
requested documentation, to one of the Certifying Agencies serving the geographical area where
your firm has its principal place of business.
For information about the certification process or to apply for certification, firms should contact
one of the following certifying agency:
Georgia Department of Transportation (GDOT)
One Georgia Center
600 West Peachtree NW
Atlanta, GA 30308
(404) 631-1990 Main Office
www.dot.ga.gov
A copy of GDOT’s certification process and application can be found online at:
http://www.dot.ga.gov/PS/Business/DBE
SUBPART F – COMPLIANCE AND ENFORCEMENT
Information, Confidentiality, Cooperation (§26.109)
AUGUSTA, GEORGIA will safeguard from disclosure to third parties information that may
reasonably be regarded as confidential business information, consistent with federal, state and
local law.
Notwithstanding any contrary provisions of state or local law, AUGUSTA, GEORGIA will not
release personal financial information submitted in response to the personal net worth
requirement to a third party (other than DOT) without the written consent of the submitter.
Monitoring Payments to DBEs
AUGUSTA, GEORGIA 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 AUGUSTA,
GEORGIA or DOT. This reporting requirement also extends to any certified DBE subcontractor.
AUGUSTA, GEORGIA 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.
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ATTACHMENTS
Attachment 1: AUGUSTA, GEORGIA DBE Program Resolution
Attachment 2: Definitions
Attachment 3: Organizational Chart
Attachment 4: Minority Owned Financial Institutions
Attachment 5: GDOT DBE Directory
Attachment 6: Monitoring and Enforcement Mechanisms/Legal Remedies
Attachment 7: Good Faith Efforts Forms
Attachment 8: DBE Regulation, 49 CFR Part 26
Appendix A: AUGUSTA, GEORGIA Summary of DBE – Monthly Subcontractors Paid
Report
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ATTACHMENT 1
AUGUSTA, GEORGIA Commission Resolution Adopting
DBE Program
AUGUSTA, GEORGIA
DISADVANTAGED BUSINESS ENTERPRISE PROGRAM
POLICY STATEMENT
Policy Statement (§26.1, §26.23)
Augusta, Georgia (Augusta, Georgia) has established a Disadvantaged Business Enterprise
(DBE) program in accordance with regulations of the U.S. Department of Transportation (DOT),
49 Code of Federal Regulations (CFR) Part 26. Augusta, Georgia has received federal financial
assistance from the Department of Transportation, and as a condition of receiving this assistance,
Augusta, Georgia has signed an assurance that it will comply with 49 CFR Part 26.
It is the policy of Augusta, Georgia to ensure that DBEs, as defined in Part 26, have an equal
opportunity to receive and participate in DOT-assisted contracts. It is also 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 marketplace
outside the DBE program.
Kellie S. Irving, Compliance Department Director, is Augusta, Georgia’s DBE Liaison Officer
and 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
Augusta, Georgia in its financial assistance agreements with the DOT.
Augusta, Georgia has disseminated this policy statement to its Board of Commissioners and
Mayor and all of the departments of its organization. Augusta, Georgia has distributed this
statement to DBE and non-DBE business communities that perform work for Augusta, Georgia
on DOT-assisted contracts. Distribution of this policy statement is publicly displayed on our
organization’s website, procurement contracting documents, and annual written notification to
all vendors via U.S. Mail and/or email.
_
Mayor Hardie Davis, Jr. Date
Augusta, Georgia
Commission Adopted: TBD
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ATTACHMENT 2
Definitions
ATTACHMENT 2
DEFINITIONS
https://www.ecfr.gov/cgi-bin/text-
idx?SID=2dd6ec15157701acc589be830b1ef30e&mc=true&node=se49.1.26_15&rgn=div8
§ 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:
(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 Metlakatla 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.).
Assets mean all the property of a person available for paying debts or for distribution, including one's
respective share of jointly held assets. This includes, but is not limited to, cash on hand and in banks,
savings accounts, IRA or other retirement accounts, accounts receivable, life insurance, stocks and bonds,
real estate, and personal property.
Business, business concern or business enterprise means an entity organized for profit with a place of
business located in the United States, and which operates primarily within the United States or which
makes a significant contribution to the United States economy through payment of taxes or use of
American products, materials, or labor.
Compliance means that a recipient has correctly implemented the requirements of this part.
Contingent Liability means a liability that depends on the occurrence of a future and uncertain event. This
includes, but is not limited to, guaranty for debts owed by the applicant concern, legal claims and judgments,
and provisions for federal income tax.
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.
Days mean calendar days. In computing any period of time described in this part, the day from which the
period begins to run is not counted, and when the last day of the period is a Saturday, Sunday, or Federal
holiday, the period extends to the next day that is not a Saturday, Sunday, or Federal holiday. Similarly,
in circumstances where the recipient's offices are closed for all or part of the last day, the period extends
to the next day on which the agency is open.
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,
grandfather, grandmother, father-in-law, mother-in-law, sister-in-law, brother-inlaw, and
domestic partner and civil unions recognized under State 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 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.
Liabilities mean financial or pecuniary obligations. This includes, but is not limited to, accounts
payable, notes payable to bank or others, installment accounts, mortgages on real estate, and unpaid
taxes.
Memorandum of Understanding or MOU means a formal agreement between two or more parties.
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 most current North American Industry 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, which is
available on the Internet at the U.S. Census Bureau Web site:
http://www.census.gov/eos/www/naics/.
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.
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 has been subjected to racial or ethnic
prejudice or cultural bias within American society because of his or her identity as a members of groups
and without regard to his or her individual qualities. The social disadvantage must stem from
circumstances beyond the individual's control.
(1) Any individual who a recipient finds to be a socially and economically disadvantaged
individual on a case-by-case basis. An individual must demonstrate that he or she has held
himself or herself out, as a member of a designated group if you require it.
(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 enrolled members of a federally or
State recognized Indian tribe, Alaska Natives, 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), Republic of the Northern Marianas Islands,
Samoa, Macao, Fiji, Tonga, Kirbati, Tuvalu, 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.
(3) Being born in a particular country does not, standing alone, mean that a person is
necessarily a member of one of the groups listed in this definition.
Spouse means a married person, including a person in a domestic partnership or a civil union recognized
under State law.
Transit vehicle manufacturer means any manufacturer whose primary business purpose is to
manufacture vehicles specifically built for public mass transportation. Such vehicles include, but
are not limited to: Buses, rail cars, trolleys, ferries, and vehicles manufactured specifically for
paratransit purposes. Producers of vehicles that receive post-production alterations or retrofitting
to be used for public transportation purposes (e.g., so-called cutaway vehicles, vans customized
for service to people with disabilities) are also considered transit vehicle manufacturers.
Businesses that manufacture, massproduce, or distribute vehicles solely for personal use and for
sale “off the lot” are not considered transit vehicle manufacturer
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]
ATTACHMENT 3
Organizational Chart
Updated May 23, 2017
Deputy Administrator Deputy Administrator
Mayor
&
Commission
General
Counsel
Administrator
Director of
Compliance
EEO, DBE & ADA
Clerk
Finance
Transit
Procurement
911
Citizens
Information
Technology
Human Resources
Fire
Central Services
Utilities
Environmental
Services
Planning and
Development
RCCI
Engineering
Recreation & Parks
Housing &
Community
Development
Animal Services
ATTACHMENT 4
Minority-Owned Financial Institutions
Minority-Owned Financial Institutions
(Georgia)
Source:
https://www.federalreserve.gov/Releases/mob/current/default.htm
ATTACHMENT 5
Georgia Unified Certification Program
DBE Directory
Georgia Department of Transportation
DBE Unified Certification Program Directory
https://gdotbiext.dot.ga.gov/analytics/saw.dll?Dashboard
ATTACHMENT 6
Monitoring and Enforcement Mechanisms/Legal Remedies
ATTACHMENT 6
MONITORING AND ENFORCEMENT MECHANISMS
The following sections contain the standards, policies, practices and procedures AUGUSTA, GEORGIA
uses to
assess whether a contractor is in compliance with regulatory and contract requirements applicable to
DOT-assisted projects:
(1) REGULATORY PROVISIONS
Including but not limited to:
A. 49 CFR Part 26 – Participation by Disadvantaged Business Enterprises
Department of Transportation Financial Assistance Programs; particularly,
Subpart F, Compliance and Enforcement
B. 49 CFR Part 29 – Government-wide Debarment and Suspension (Non-
Procurement) and Government-wide Requirements for Drug-Free Workplace.
C. 49 CFR Part 31 – Program Fraud Civil Remedies
D. 13 CFR Part 121 – Small Business Size Standards
(2) CONTRACT REQUIRMENTS AND REMEDIES
Contract requirements and remedies are provided in this DBE program and by administrative policies,
practices and procedures requirements in each contract. All contractors, as a condition of Participation
in any DOT-assisted contract, shall agree to the terms of this DBE program, and shall incorporate the
DBE program and the DBE administrative policies, practices and procedures requirements into their
contracts and subcontracts at all tiers.
(3) FINDINGS OF NON-COMPLIANCE AND ADMINISTRATIVE SANCTIONS
Contractors found not to be compliant with any part of the DBE program requirements shall be
notified of AUGUSTA, GEORGIA’s finding of Non-Compliance, in writing, by certified mail. The
notice shall cite the DBE program requirement under which the contractor is non-compliant, state the
date of the findings and the grounds on which the finding was made and state the category of
sanctions being imposed.
Upon a finding of non-compliance, AUGUSTA, GEORGIA may choose to impose sanctions.
(4) ENFORCEMENT MECHANISMS
The federal government has available several enforcement mechanisms that it may apply to firms
participating in the DBE program, including, but not limited to, the following:
A. Suspension or debarment proceedings pursuant to 49 CFR Part 26
B. Enforcement action pursuant to 49 CFR Part 31
C. Prosecution pursuant to 18 USC 1001.
(5) RESOLUTION OF DISPUTES BETWEEN CONTRACTOR AND SUBCONTRACTORS
Disputes between the Contractor and any lower-tier DBE subcontractors, which cannot be settled by
discussions between the parties involved, shall be settled as described herein. Contractor shall notify
AUGUSTA, GEORGIA of such dispute within 10 days of failure to resolve through written cure
notice process described above. These provisions shall not apply to disputes between the Contractor
and AUGUSTA, GEORGIA. The Contractor and Subcontractors shall include the dispute resolution
provision in their contract. Both parties shall agree to proceed through informal meetings, mediation,
or arbitration, or any combination thereof.
Dispute submittals shall include terms and timeframes and the service or assistance to be employed.
ATTACHMENT 7
Good Faith Effort Forms
EVIDENCE OF GOOD FAITH EFFORTS
This completed form should be furnished to AUGUSTA, GEORGIA
CURRENT DATE: / /
RFP/RFQ/P.O./Bid/Solicitation/Other:
PROJECT DESCRIPTION:
BIDDER/OFFERER(FIRM):
CONTACT PERSON: TELEPHONE:
ADDRESS: CITY:
STATE: ZIP: EMAIL:
YES NO EVIDENCE OF GOOD FAITH EFFORTS
PRE‐BID MEETING(S): The bidder/offerer attended all pre‐bid meetings
scheduled by AUGUSTA, GEORGIA to inform DBEs of contracting
and subcontracting opportunities.
COMMUNITY RESOURCES: The bidder/offerer used the services of available
community organizations, small and/or disadvantaged business assistance offices
and other organizations that provided assistance in the recruitment and placement
of DBE firms.
DBE LIST(S): The bidder/offerer utilized the GDOT list of certified DBE
firms found on the GDOT website.
ADVERTISEMENT: The bidder/offerer advertised in general circulation and/or
trade association publications concerning subcontracting opportunities, and
allowed DBEs reasonable time to respond.
WRITTEN NOTICE(S): The bidder/offerer took the necessary steps to provide
written notice in a manner reasonably calculated to inform DBEs of subcontracting
opportunities and allowed sufficient time for them to participate effectively.
SMALL CONTRACT(S):The bidder/offerer selected specific portions of the
work to be performed by DBEs in order to increase the likelihood of meeting the
DBE goals (including breaking down contracts into smaller units to facilitate DBE
participation).
INFORMATION: The bidder/offerer provided interested DBEs with adequate
information about the plans, specifications and requirements of the subcontract.
FOLLOW‐UP: The bidder/offerer followed‐up initial indications of interest by
DBEs by contacting those DBEs to determine with certainty if they remained
interested in bidding.
GOOD FAITH NEGOTIATIONS: The bidder/offerer negotiated in good faith
with interested DBEs and did not reject DBEs as unqualified without sound
business reasons based on a thorough investigation of their capabilities.
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To determine whether a bidder/offerer has demonstrated good faith efforts to reach the DBE
utilization goal(s) on the above‐referenced project, AUGUSTA, GEORGIA will consider, AT
A MINIMUM, EVIDENCE OF GOOD FAITH EFFORTS as described in the table below.
EVIDENCE OF GOOD FAITH EFFORTS
a) A report of all proposals received from a joint venture of DBE firms. The report shall indicate
the action taken by the bidder/offerer in response to the submitted proposals that have been
rejected, and the reason for rejection shall be indicated.
b) Documentation of efforts to enter into agreements with DBE firms for contracted work and
efforts to arrange for a joint venture, partnership or other business relationship with DBEs.
c) Documented contact with DBE firms, associations, or business development organizations
which disseminate information to DBE firms.
d) A copy of letters sent to groups in relevant market sectors notifying them of the
bidder's/offerer's intent to submit a proposal to AUGUSTA, GEORGIA.
e) Description of assistance provided by the bidder to DBE firms:
1. Review of Request for Proposal or other documents issued by AUGUSTA, GEORGIA.
2. Review of the Scope of Work to be performed.
3. Efforts to assist interested DBEs with bonding, insurance, lines of credit as required
by the bidder/offerer.
f) Documentation of any other effort(s) undertaken by the bidder to encourage the participation
of DBE firms.
g) Overall operation of the bidder/offerer may be considered in evaluating the Evidence of Good
Faith Efforts of the bidder/offerer to comply with the goals and intent of the disadvantaged
business enterprise goals for AUGUSTA, GEORGIA.
h) Any other documentation to demonstrate Evidence of Good Faith Efforts to satisfy the
objectives outlined above.
ASSISTANCE
You may contact the DBE Liaison Officer for assistance with completing any DBE form or
document. You may also contact the DBE Liaison Officer for assistance in identifying
available, capable, and willing DBE firms.
CONTACT US
Kellie S. Irving
Compliance Department Director
Augusta, Georgia
535 Telfair Street, Suite 710
706.826.1325
kirving@augustga.gov
www.augustaga.gov
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ATTACHMENT 8
DBE Regulation, 49 CFR Part 26
DBE Regulation, 49 CFR Part 26
https://www.ecfr.gov/cgi-
bin/retrieveECFR?gp=&SID=2dd6ec15157701acc589be830b
1ef30e&mc=true&n=pt49.1.26&r=PART&ty=HTML
Appendis F to Part 26—Uniform Certification Application
https://www.transportation.gov/sites/dot.gov/files/docs/New%20DBE%20Ce
rtification%20Application%2011-18-2014_0.pdf
Appendix G to Part 26—Personal Net Worth Statement
https://www.transportation.gov/sites/dot.gov/files/docs/NewDBEPersNetWor
thStmt.pdf
E L E C T R O N I C C O D E O F F E D E R A L R E G U L AT I O N S
e-CFR data is current as of January 10, 2018
Title 49 → Subtitle A → Part 26
Title 49: Transportation
PART 26—PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT OF TRANSPORTATION
FINANCIAL ASSISTANCE PROGRAMS
Contents
Subpart A—General
§26.1 What are the objectives of this part?
§26.3 To whom does this part apply?
§26.5 What do the terms used in this part mean?
§26.7 What discriminatory actions are forbidden?
§26.9 How does the Department issue guidance and interpretations under this part?
§26.11 What records do recipients keep and report?
§26.13 What assurances must recipients and contractors make?
§26.15 How can recipients apply for exemptions or waivers?
Subpart B—Administrative Requirements for DBE Programs for Federally-Assisted Contracting
§26.21 Who must have a DBE program?
§26.23 What is the requirement for a policy statement?
§26.25 What is the requirement for a liaison officer?
§26.27 What efforts must recipients make concerning DBE financial institutions?
§26.29 What prompt payment mechanisms must recipients have?
§26.31 What information must you include in your DBE directory?
§26.33 What steps must a recipient take to address overconcentration of DBEs in certain types of work?
§26.35 What role do business development and mentor-protégé programs have in the DBE program?
§26.37 What are a recipient's responsibilities for monitoring the performance of other program participants?
§26.39 Fostering small business participation.
Subpart C—Goals, Good Faith Efforts, and Counting
§26.41 What is the role of the statutory 10 percent goal in this program?
§26.43 Can recipients use set-asides or quotas as part of this program?
§26.45 How do recipients set overall goals?
§26.47 Can recipients be penalized for failing to meet overall goals?
§26.49 How are overall goals established for transit vehicle manufacturers?
§26.51 What means do recipients use to meet overall goals?
§26.53 What are the good faith efforts procedures recipients follow in situations where there are contract goals?
§26.55 How is DBE participation counted toward goals?
Subpart D—Certification Standards
§26.61 How are burdens of proof allocated in the certification process?
§26.63 What rules govern group membership determinations?
§26.65 What rules govern business size determinations?
§26.67 What rules determine social and economic disadvantage?
§26.69 What rules govern determinations of ownership?
§26.71 What rules govern determinations concerning control?
§26.73 What are other rules affecting certification?
Subpart E—Certification Procedures
§26.81 What are the requirements for Unified Certification Programs?
§26.83 What procedures do recipients follow in making certification decisions?
§26.85 Interstate certification.
§26.86 What rules govern recipients' denials of initial requests for certification?
§26.87 What procedures does a recipient use to remove a DBE's eligibility?
§26.88 Summary suspension of certification.
§26.89 What is the process for certification appeals to the Department of Transportation?
§26.91 What actions do recipients take following DOT certification appeal decisions?
Subpart F—Compliance and Enforcement
§26.101 What compliance procedures apply to recipients?
§26.103 What enforcement actions apply in FHWA and FTA programs?
§26.105 What enforcement actions apply in FAA programs?
§26.107 What enforcement actions apply to firms participating in the DBE program?
§26.109 What are the rules governing information, confidentiality, cooperation, and intimidation or retaliation?
Appendix A to Part 26—Guidance Concerning Good Faith Efforts
Appendix B to Part 26—Uniform Report of DBE Awards or Commitments and Payments Form
Appendix C to Part 26—DBE Business Development Program Guidelines
Appendix D to Part 26—Mentor-Protégé Program Guidelines
Appendix E to Part 26—Individual Determinations of Social and Economic Disadvantage
Appendix F to Part 26—Uniform Certification Application Form
Appendix G to Part 26—Personal Net Worth Statement
AUTHORITY: 23 U.S.C. 304 and 324; 42 U.S.C. 2000d, et seq. ; 49 U.S.C. 47107, 47113, 47123; Sec. 1101(b), Pub. L. 105-178, 112
Stat. 107, 113.
SOURCE: 64 FR 5126, Feb. 2, 1999, unless otherwise noted.
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Subpart A—General
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§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 promote the use of DBEs in all types of federally-assisted contracts and procurement activities conducted by
recipients.
(g) To assist the development of firms that can compete successfully in the marketplace outside the DBE program; and
(h) To provide appropriate flexibility to recipients of Federal financial assistance in establishing and providing opportunities
for DBEs.
[64 FR 5126, Feb. 2, 1999, as amended at 79 FR 59592, Oct. 2, 2014]
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§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. Titles I, III, and V of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 119 Stat. 1144; and Divisions A and B of the
Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 405.
(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. Titles I, III, and V of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 119 Stat. 1144; and Divisions A and B of the
Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 405.
(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.
[64 FR 5126, Feb. 2, 1999, as amended at 79 FR 59592, Oct. 2, 2014]
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§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:
(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.).
Assets mean all the property of a person available for paying debts or for distribution, including one's respective share of
jointly held assets. This includes, but is not limited to, cash on hand and in banks, savings accounts, IRA or other retirement
accounts, accounts receivable, life insurance, stocks and bonds, real estate, and personal property.
Business, business concern or business enterprise means an entity organized for profit with a place of business located in
the United States, and which operates primarily within the United States or which makes a significant contribution to the United
States economy through payment of taxes or use of American products, materials, or labor.
Compliance means that a recipient has correctly implemented the requirements of this part.
Contingent Liability means a liability that depends on the occurrence of a future and uncertain event. This includes, but is
not limited to, guaranty for debts owed by the applicant concern, legal claims and judgments, and provisions for federal income
tax.
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.
Days mean calendar days. In computing any period of time described in this part, the day from which the period begins to
run is not counted, and when the last day of the period is a Saturday, Sunday, or Federal holiday, the period extends to the next
day that is not a Saturday, Sunday, or Federal holiday. Similarly, in circumstances where the recipient's offices are closed for all
or part of the last day, the period extends to the next day on which the agency is open.
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.
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, grandfather, grandmother,
father-in-law, mother-in-law, sister-in-law, brother-in-law, and domestic partner and civil unions recognized under State 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 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.
Liabilities mean financial or pecuniary obligations. This includes, but is not limited to, accounts payable, notes payable to
bank or others, installment accounts, mortgages on real estate, and unpaid taxes.
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 most current North American Industry 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, which is available on the Internet at the U.S. Census Bureau Web site:
http://www.census.gov/eos/www/naics/.
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. If the offices from which management is directed and where the business records are
kept are in different locations, the recipient will determine the principal place of business.
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.
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 has been subjected to racial or ethnic prejudice or cultural bias within American society
because of his or her identity as a members of groups and without regard to his or her individual qualities. The social
disadvantage must stem from circumstances beyond the individual's control.
(1) Any individual who a recipient finds to be a socially and economically disadvantaged individual on a case-by-case
basis. An individual must demonstrate that he or she has held himself or herself out, as a member of a designated group if you
require it.
(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 enrolled members of a federally or State recognized Indian tribe,
Alaska Natives, 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), Republic of the Northern Marianas Islands, Samoa, Macao, Fiji,
Tonga, Kirbati, Tuvalu, 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.
(3) Being born in a particular country does not, standing alone, mean that a person is necessarily a member of one of the
groups listed in this definition.
Spouse means a married person, including a person in a domestic partnership or a civil union recognized under State law.
Transit vehicle manufacturer means any manufacturer whose primary business purpose is to manufacture vehicles
specifically built for public mass transportation. Such vehicles include, but are not limited to: Buses, rail cars, trolleys, ferries,
and vehicles manufactured specifically for paratransit purposes. Producers of vehicles that receive post-production alterations
or retrofitting to be used for public transportation purposes (e.g., so-called cutaway vehicles, vans customized for service to
people with disabilities) are also considered transit vehicle manufacturers. Businesses that manufacture, mass-produce, or
distribute vehicles solely for personal use and for sale “off the lot” are not considered transit vehicle manufacturers.
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; 79 FR
59592, Oct. 2, 2014]
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§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.
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§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 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]
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§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).
(d) You must maintain records documenting a firm's compliance with the requirements of this part. At a minimum, you must
keep a complete application package for each certified firm and all affidavits of no-change, change notices, and on-site reviews.
These records must be retained in accordance with applicable record retention requirements for the recipient's financial
assistance agreement. Other certification or compliance related records must be retained for a minimum of three (3) years
unless otherwise provided by applicable record retention requirements for the recipient's financial assistance agreement,
whichever is longer.
(e) The State department of transportation in each UCP established pursuant to §26.81 of this part must report to the
Department of Transportation's Office of Civil Rights, by January 1, 2015, and each year thereafter, the percentage and location
in the State of certified DBE firms in the UCP Directory controlled by the following:
(1) Women;
(2) Socially and economically disadvantaged individuals (other than women); and
(3) Individuals who are women and are otherwise socially and economically disadvantaged individuals.
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000; 76 FR 5096, Jan. 28, 2011; 79 FR 59593, Oct. 2, 2014]
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§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 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 under 49 CFR 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, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non-responsible.
[79 FR 59593, Oct. 2, 2014]
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§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
(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.
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Subpart B—Administrative Requirements for DBE Programs for Federally-Assisted Contracting
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§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 primary 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) the cumulative total value of which exceeds $250,000 in FTA funds in a Federal fiscal year;
(3) FAA recipients receiving grants for airport planning or development who will award prime contracts the cumulative total
value of which exceeds $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; 79 FR 59593, Oct. 2, 2014]
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§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.
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§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.
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§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.
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§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]
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§26.31 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-
protégé 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.
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§26.35 What role do business development and mentor-protégé 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-protégé” 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-protégé program are
eligible to participate in the mentor-protégé program.
(2) During the course of the mentor-protégé relationship, you must:
(i) Not award DBE credit to a non-DBE mentor firm for using its own protégé 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 protégé firm for more than every other contract
performed by the protégé firm.
(3) For purposes of making determinations of business size under this part, you must not treat protégé firms as affiliates of
mentor firms, when both firms are participating under an approved mentor-protégé program. See Appendix D of this part for
guidance concerning the operation of mentor-protégé programs.
(c) Your BDPs and mentor-protégé programs must be approved by the concerned operating administration before you
implement them. Once approved, they become part of your DBE program.
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§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).
(c) This mechanism must provide for a running tally of actual DBE attainments (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]
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§26.39 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]
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Subpart C—Goals, Good Faith Efforts, and Counting
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§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.
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§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.
(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.
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§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/epcd/cbp/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 (successful and unsuccessful) on your DOT-
assisted prime contracts or subcontracts in the past three years. Determine the number of all businesses that have bid or
quoted (successful and unsuccessful) on prime or subcontracts in the same time period. Divide the number of DBE bidders and
quoters by the number of all businesses to derive a base figure for the relative availability of DBEs in your market. When using
this approach, you must establish a mechanism (documented in your goal submission) to directly capture data on DBE and
non-DBE prime and subcontractors that submitted bids or quotes on your DOT-assisted contracts.
(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. Except as otherwise provided in this paragraph, 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. The
exclusive use of a list of prequalified contractors or plan holders, or a bidders list that does not comply with the requirements of
paragraph (c)(2) of this section, is not an acceptable alternative means of determining the availability of DBEs.
(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 to arrive at your overall goal. If the evidence does not suggest
an adjustment is necessary, then no adjustment shall be made.
(1) There are many types of evidence that must be considered when adjusting the base figure. These include:
(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, including entire 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.
(f)(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.
(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,
incuding 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-consioous
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. In evaluating the adequacy or soundness of the methodology used
to derive the overall goal, the operating administration will be guided by goal setting principles and best practices identified by
the Department in guidance issued pursuant to §26.9.
(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)(1) In establishing an overall goal, you must provide for consultation and publication. This includes:
(i) 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. The consultation must include a scheduled, direct, interactive exchange (e.g., a face-to-face meeting,
video conference, teleconference) with as many interested stakeholders as possible focused on obtaining information relevant
to the goal setting process, and it must occur before you are required to submit your methodology to the operating
administration for review pursuant to paragraph (f) of this section. You must document in your goal submission the consultation
process you engaged in. Notwithstanding paragraph (f)(4) of this section, you may not implement your proposed goal until you
have complied with this requirement.
(ii) A published notice announcing your proposed overall goal before submission to the operating administration on August
1st. The notice must be posted on your official Internet Web site and may be posted in any other sources (e.g., minority-focused
media, trade association publications). If the proposed goal changes following review by the operating administration, the
revised goal must be posted on your official Internet Web site.
(2) At your discretion, you may inform the public that the proposed overall goal and its rationale are available for inspection
during normal business hours at your principal office and for a 30-day comment period. Notice of the comment period must
include addresses to which comments may be sent. The public comment period will not extend the August 1st deadline set in
paragraph (f) of this section.
(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; 79 FR 59593, Oct. 2, 2014]
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§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]
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§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.
(1) Only those transit vehicle manufacturers listed on FTA's certified list of Transit Vehicle Manufacturers, or that have
submitted a goal methodology to FTA that has been approved or has not been disapproved, at the time of solicitation are
eligible to bid.
(2) A TVM's failure to implement the DBE Program in the manner as prescribed in this section and throughout 49 CFR part
26 will be deemed as non-compliance, which will result in removal from FTA's certified TVMs list, resulting in that manufacturer
becoming ineligible to bid.
(3) FTA recipient's failure to comply with the requirements set forth in paragraph (a) of this section may result in formal
enforcement action or appropriate sanction as determined by FTA (e.g., FTA declining to participate in the vehicle
procurement).
(4) FTA recipients are required to submit within 30 days of making an award, the name of the successful bidder, and the
total dollar value of the contract in the manner prescribed in the grant agreement.
(b) If you are a transit vehicle manufacturer, you must establish and submit for FTA's approval an annual overall
percentage goal.
(1) 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
bid on during the fiscal year in question, less the portion(s) attributable to the manufacturing process performed entirely by the
transit vehicle manufacturer's own forces.
(i) You must consider and include in your base figure all domestic contracting opportunities made available to non-DBE
firms; and
(ii) You must exclude from this base figure funds attributable to work performed outside the United States and its territories,
possessions, and commonwealths.
(iii) In establishing an overall goal, the transit vehicle manufacturer must provide for public participation. This includes
consultation with interested parties consistent with §26.45(g).
(2) The requirements of this part with respect to submission and approval of overall goals apply to you as they do to
recipients.
(c) Transit vehicle manufacturers awarded must comply with the reporting requirements of §26.11 of this part including the
requirement to submit the Uniform Report of Awards or Commitments and Payments, in order to remain eligible to bid on FTA
assisted transit vehicle procurements.
(d) Transit vehicle manufacturers must implement all other applicable requirements of this part, except those relating to
UCPs and DBE certification procedures.
(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.
(f) 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.
[79 FR 59594, Oct. 2, 2014]
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§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 race-
neutral DBE participation. Race-neutral DBE participation includes any time a DBE wins a prime contract through customary
competitive procurement procedures or is awarded a subcontract on a prime contract that does not carry a DBE contract goal.
(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.
(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.
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; 79 FR 59595, Oct. 2, 2014]
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§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 or 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. To count toward meeting a goal, each DBE firm must be certified
in a NAICS code applicable to the kind of work the firm would perform on the contract;
(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; and
(v) Written confirmation from each listed DBE firm that it is participating in the contract in the kind and amount of work
provided in the prime contractor's commitment.
(vi) If the contract goal is not met, evidence of good faith efforts (see Appendix A of this part). The documentation of good
faith efforts must include copies of each DBE and non-DBE subcontractor quote submitted to the bidder when a non-DBE
subcontractor was selected over a DBE for work on the contract; and
(3)(i) At your discretion, the bidder/offeror must present the information required by paragraph (b)(2) of this section—
(A) Under sealed bid procedures, as a matter of responsiveness, or with initial proposals, under contract negotiation
procedures; or
(B) No later than 7 days after bid opening as a matter of responsibility. The 7 days shall be reduced to 5 days beginning
January 1, 2017.
(ii) Provided that, in a negotiated procurement, including a design-build procurement, the bidder/offeror may make a
contractually binding commitment to meet the goal at the time of bid submission or the presentation of initial proposals but
provide the information required by paragraph (b)(2) of this section before the final selection for the contract is made by the
recipient.
(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.
(f)(1)(i) 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.
(ii) You must include in each prime contract a provision stating:
(A) That the contractor shall utilize the specific DBEs listed to perform the work and supply the materials for which each is
listed unless the contractor obtains your written consent as provided in this paragraph (f); and
(B) That, unless your consent is provided under this paragraph (f), the contractor shall not be entitled to any payment for
work or material unless it is performed or supplied by the listed DBE.
(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 contracor;
(iii) The listed DBE subcontractor fails or refuses to meet the prime contractor's reasonable, nondiscriminatory bond
requirements.
(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 as provided in paragraph (f) of this section, 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. The good faith efforts shall be documented by the contractor. If the recipient requests
documentation under this provision, the contractor shall submit the documentation within 7 days, which may be extended for an
additional 7 days if necessary at the request of the contractor, and the recipient shall provide a written determination to the
contractor stating whether or not good faith efforts have been demonstrated.
(h) You must include in each prime contract the contract clause required by §26.13(b) stating that failure by the contractor
to carry out the requirements of this part is a material breach of the contract and may result in the termination of the contract or
such other remedies set forth in that section you deem appropriate 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.
(j) You must require the contractor awarded the contract to make available upon request a copy of all DBE subcontracts.
The subcontractor shall ensure that all subcontracts or an agreement with DBEs to supply labor or materials require that the
subcontract and all lower tier subcontractors be performed in accordance with this part's provisions.
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR 5098, Jan. 28, 2011; 79 FR 59595, Oct. 2, 2014]
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§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).
(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.
(5) The DBE may also lease trucks from a non-DBE firm, including from an owner-operator. The DBE that leases trucks
equipped with drivers from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE
leased trucks equipped with drivers not to exceed the value of transportation services on the contract provided by DBE-owned
trucks or leased trucks with DBE employee drivers. Additional participation by non-DBE owned trucks equipped with drivers
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 DOT operating administration.
Example to 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 equipped with drivers 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. DBE credit could be awarded only for the fees or
commissions pertaining to the remaining trucks Firm X receives as a result of the lease with Firm Z.
(6) The DBE may lease trucks without drivers from a non-DBE truck leasing company. If the DBE leases trucks from a non-
DBE truck leasing company and uses its own employees as drivers, it is entitled to credit for the total value of these hauling
services.
Example to paragraph (d)(6): DBE Firm X uses two of its own trucks on a contract. It leases two additional trucks from non-DBE Firm
Z. Firm X uses its own employees to drive the trucks leased from Firm Z. DBE credit would be awarded for the total value of the
transportation services provided by all four trucks.
(7) 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.
(4) You must determine the amount of credit awarded to a firm for the provisions of materials and supplies (e.g., whether a
firm is acting as a regular dealer or a transaction expediter) on a contract-by-contract basis.
(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)).
(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; 79 FR 59595, Oct. 2, 2014]
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Subpart D—Certification Standards
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§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]
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§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.
(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]
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§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, including the primary industry
classification of the applicant.
(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 $23.98 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, as amended at 79 FR 59596, Oct. 2, 2014]
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§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. To meet this requirement, you must use the DOT personal net worth form
provided in appendix G to this part without change or revision. Where necessary to accurately determine an individual's
personal net worth, you may, on a case-by-case basis, require additional financial information from the owner of an applicant
firm (e.g., information concerning the assets of the owner's spouse, where needed to clarify whether assets have been
transferred to the spouse or when the owner's spouse is involved in the operation of the company). Requests for additional
information shall not be unduly 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). The equity is the market value of the residence less any mortgages and home
equity loan balances. Recipients must ensure that home equity loan balances are included in the equity calculation and not as a
separate liability on the individual's personal net worth form. Exclusions for net worth purposes are not exclusions for asset
valuation or access to capital and credit purposes.
(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 §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) An individual's presumption of economic disadvantage may be rebutted in
two ways.
(i) If the statement of personal net worth and supporting documentation that an individual submits under paragraph (a)(2) of
this section shows that the individual's personal net worth exceeds $1.32 million, the 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.
Example to paragraph (b)(1)(i): An individual with very high assets and significant liabilities may, in accounting terms, have a PNW of
less than $1.32 million. However, the person's assets collectively (e.g., high income level, a very expensive house, a yacht, extensive real
or personal property holdings) may lead a reasonable person to conclude that he or she is not economically disadvantaged. The recipient
may rebut the individual's presumption of economic disadvantage under these circumstances, as provided in this section, even though the
individual's PNW is less than $1.32 million.
(ii)(A) If the statement of personal net worth and supporting documentation that an individual submits under paragraph (a)
(2) of this section demonstrates that the individual is able to accumulate substantial wealth, the individual's presumption of
economic disadvantage is rebutted. In making this determination, as a certifying agency, you may consider factors that include,
but are not limited to, the following:
(1) Whether the average adjusted gross income of the owner over the most recent three year period exceeds $350,000;
(2) Whether the income was unusual and not likely to occur in the future;
firm;
(3) Whether the earnings were offset by losses;
(4) Whether the income was reinvested in the firm or used to pay taxes arising in the normal course of operations by the
(5) Other evidence that income is not indicative of lack of economic disadvantage; and
(6) Whether the total fair market value of the owner's assets exceed $6 million.
(B) You must 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, so long as his or her PNW remains above that
amount.
(c) Transfers within two years. (1) Except as set forth in paragraph (c)(2) of this section, recipients must attribute to an
individual claiming disadvantaged status any assets which that individual has transferred to an immediate family member, to a
trust a beneficiary of which is an immediate family member, or to the applicant firm for less than fair market value, within two
years prior to a concern's application for participation in the DBE program or within two years of recipient's review of the firm's
annual affidavit, unless the individual claiming disadvantaged status can demonstrate that the transfer is to or on behalf of an
immediate family member for that individual's education, medical expenses, or some other form of essential support.
(2) Recipients must not attribute to an individual claiming disadvantaged status any assets transferred by that individual to
an immediate family member that are consistent with the customary recognition of special occasions, such as birthdays,
graduations, anniversaries, and retirements.
(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.
[79 FR 59596, Oct. 2, 2014]
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§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, including the origin of all assets and how and when they were used in
obtaining the firm. All transactions for the establishment and ownership (or transfer of ownership) must be in the normal course
of business, reflecting commercial and arms-length practices.
(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)(1) The firm's ownership by socially and economically disadvantaged individuals, including their contribution of capital or
expertise to acquire their ownership interests, must be real, substantial, and continuing, going beyond pro forma ownership of
the firm as reflected in ownership documents. Proof of contribution of capital should be submitted at the time of the application.
When the contribution of capital is through a loan, there must be documentation of the value of assets used as collateral for the
loan.
(2) Insufficient contributions include a promise to contribute capital, an unsecured note payable to the firm or an owner who
is not a disadvantaged individual, mere participation in a firm's activities as an employee, or capitalization not commensurate
with the value for the firm.
(3) The disadvantaged owners must enjoy the customary incidents of ownership, and share in the risks and be entitled to
the profits and loss commensurate with their ownership interests, as demonstrated by the substance, not merely the form, of
arrangements. Any terms or practices that give a non-disadvantaged individual or firm a priority or superior right to a firm's
profits, compared to the disadvantaged owner(s), are grounds for denial.
(4) 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.
Examples to paragraph (c): (i) An individual pays $100 to acquire a majority interest in a firm worth $1 million. The individual's
contribution to capital would not be viewed as substantial.
(ii) A 51% disadvantaged owner and a non-disadvantaged 49% owner contribute $100 and $10,000, respectively, to acquire a firm
grossing $1 million. This may be indicative of a pro forma arrangement that does not meet the requirements of (c)(1).
(iii) The disadvantaged owner of a DBE applicant firm spends $250 to file articles of incorporation and obtains a $100,000 loan, but
makes only nominal or sporadic payments to repay the loan. This type of contribution is not of a continuing nature.
(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.
(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—
and
(i) The gift or transfer to the disadvantaged individual was made for reasons other than obtaining certification as a DBE;
(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.
[64 FR 5126, Feb. 2, 1999, as amended at 79 FR 59597, Oct. 2, 2014]
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§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.
(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 or immediate family members 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.
(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.
(l) 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
nondisadvantaged individual remains involved with the firm in any capacity, there is a rebuttable presumption of control by the
non-disadvantaged individual unless the disadvantaged individual now owning the firm demonstrates 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 nondisadvantaged 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.
(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; 79 FR 59597, Oct. 2, 2014]
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§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.
(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.
(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 §26.65. Such a firm must be controlled
by socially and economically disadvantaged individuals, as provided in §26.71.
(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; 79 FR 59598, Oct. 2, 2014]
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Subpart E—Certification Procedures
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§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 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]
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§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)(1) You must take all the following steps in determining whether a DBE firm meets the standards of subpart D of this
part:
(i) Perform an on-site visit to the firm's principal place of business. You must interview the principal officers and review their
résumés and/or work histories. You may interview key personnel of the firm if necessary. 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;
(ii) Analyze documentation related to the legal structure, ownership, and control of the applicant firm. This includes, but is
not limited to, Articles of Incorporation/Organization; corporate by-laws or operating agreements; organizational, annual and
board/member meeting records; stock ledgers and certificates; and State-issued Certificates of Good Standing
(iii) Analyze the bonding and financial capacity of the firm; lease and loan agreements; bank account signature cards;
(iv) Determine the work history of the firm, including contracts it has received, work it has completed; and payroll records;
(v) 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.
(vi) 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;
(vii) Obtain complete Federal income tax returns (or requests for extensions) filed by the firm, its affiliates, and the socially
and economically disadvantaged owners for the last 3 years. A complete return includes all forms, schedules, and statements
filed with the Internal Revenue Service.
(viii) Require potential DBEs to complete and submit an appropriate application form, except as otherwise provided in
§26.85 of this part.
(2) 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 written approval of the concerned operating administration, for supplementing the form
by requesting specified additional information not inconsistent with this part.
(3) 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.
(4) You must review all information on the form prior to making a decision about the eligibility of the firm. You may request
clarification of information contained in the application at any time in the application process.
(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)(1) 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 §26.87 of this part, except as provided in §26.67(b)(1) of this part.
(2) You may not require DBEs to reapply for certification or undergo a recertification process. However, you may conduct a
certification review of a certified DBE firm, including a new on-site review, if appropriate in light of changed circumstances (e.g.,
of the kind requiring notice under paragraph (i) of this section or relating to suspension of certification under §26.88), a
complaint, or other information concerning the firm's eligibility. If information comes to your attention that leads you to question
the firm's eligibility, you may conduct an on-site review on an unannounced basis, at the firm's offices and job sites.
(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 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 (e.g., submission of Federal tax returns). 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.
(l) 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; 79 FR 59598, Oct. 2, 2014]
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§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 A, as well as any
correspondence you have had with State A's 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.
(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]
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§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 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) [Reserved]
(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. An applicant's appeal of your decision
to the Department pursuant to §26.89 does not extend this period.
(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; 79 FR 59598, Oct. 2, 2014]
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§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.
(1) In such a proceeding, you bear the burden of proving, by a preponderance of the evidence, that the firm does not 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 may base a decision to remove a firm's eligibility only on one or more of the following
grounds:
(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 relevant to eligibility that has been concealed or misrepresented by the firm;
(4) A change in the certification standards or requirements of the Department since you certified the firm;
(5) Your decision to certify the firm was clearly erroneous;
(6) The firm has failed to cooperate with you (see §26.109(c));
(7) The firm has exhibited a pattern of conduct indicating its involvement in attempts to subvert the intent or requirements of
the DBE program (see §26.73(a)(2)); or
(8) The firm has been suspended or debarred for conduct related to the DBE program. The notice required by paragraph
(g) of this section must include a copy of the suspension or debarment action. A decision to remove a firm for this reason shall
not be subject to the hearing procedures in paragraph (d) of this section.
(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. Provided that, when sending such a notice to a complainant
other than a DOT operating administration, you must not include information reasonably construed as confidential business
information without the written consent of the firm that submitted the information.
(h) [Reserved]
(i) Status of firm during proceeding. (1) A firm remains an eligible DBE during the pendancy 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:
(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; 79 FR 59599, Oct. 2, 2014]
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§26.88 Summary suspension of certification.
(a) A recipient shall immediately suspend a DBE's certification without adhering to the requirements in §26.87(d) of this
part when an individual owner whose ownership and control of the firm are necessary to the firm's certification dies or is
incarcerated.
(b)(1) A recipient may immediately suspend a DBE's certification without adhering to the requirements in §26.87(d) when
there is adequate evidence to believe that there has been a material change in circumstances that may affect the eligibility of
the DBE firm to remain certified, or when the DBE fails to notify the recipient or UCP in writing of any material change in
circumstances as required by §26.83(i) of this part or fails to timely file an affidavit of no change under §26.83(j).
(2) In determining the adequacy of the evidence to issue a suspension under paragraph (b)(1) of this section, the recipient
shall consider all relevant factors, including how much information is available, the credibility of the information and allegations
given the circumstances, whether or not important allegations are corroborated, and what inferences can reasonably be drawn
as a result.
(c) The concerned operating administration may direct the recipient to take action pursuant to paragraph (a) or (b) this
section if it determines that information available to it is sufficient to warrant immediate suspension.
(d) When a firm is suspended pursuant to paragraph (a) or (b) of this section, the recipient shall immediately notify the DBE
of the suspension by certified mail, return receipt requested, to the last known address of the owner(s) of the DBE.
(e) Suspension is a temporary status of ineligibility pending an expedited show cause hearing/proceeding under §26.87 of
this part to determine whether the DBE is eligible to participate in the program and consequently should be removed. The
suspension takes effect when the DBE receives, or is deemed to have received, the Notice of Suspension.
(f) While suspended, the DBE may not be considered to meet a contract goal on a new contract, and any work it does on a
contract received during the suspension shall not be counted toward a recipient's overall goal. The DBE may continue to
perform under an existing contract executed before the DBE received a Notice of Suspension and may be counted toward the
contract goal during the period of suspension as long as the DBE is performing a commercially useful function under the
existing contract.
(g) Following receipt of the Notice of Suspension, if the DBE believes it is no longer eligible, it may voluntarily withdraw
from the program, in which case no further action is required. If the DBE believes that its eligibility should be reinstated, it must
provide to the recipient information demonstrating that the firm is eligible notwithstanding its changed circumstances. Within 30
days of receiving this information, the recipient must either lift the suspension and reinstate the firm's certification or commence
a decertification action under §26.87 of this part. If the recipient commences a decertification proceeding, the suspension
remains in effect during the proceeding.
(h) The decision to immediately suspend a DBE under paragraph (a) or (b) of this section is not appealable to the US
Department of Transportation. The failure of a recipient to either lift the suspension and reinstate the firm or commence a
decertification proceeding, as required by paragraph (g) of this section, is appealable to the U.S. Department of Transportation
under §26.89 of this part, as a constructive decertification.
[79 FR 59599, Oct. 2, 2014]
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§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,
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: U.S. Department of Transportation, Departmental Office of Civil Rights, 1200
New Jersey Avenue SE., Washington, DC 20590-0001.
(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 setting forth a full and specific statement as to why the decision is erroneous, what
significant fact that the recipient failed to consider, or what provisions of this Part the recipient did not properly apply. 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 or in the interest of justice.
(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 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 as supplemented by the appeal.
The Department does not make a de novo review of the matter and does not conduct a hearing. The Department may also
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; 79
FR 59599, Oct. 2, 2014]
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§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.
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Subpart F—Compliance and Enforcement
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§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.
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§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 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.
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§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.
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§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.
(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]
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§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]
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Appendix A to Part 26—Guidance Concerning Good Faith Efforts
I. When, as a recipient, you establish a contract goal on a DOT-assisted contract for procuring construction, equipment,
services, or any other purpose, a bidder must, in order to be responsible and/or responsive, make sufficient good faith efforts to
meet the goal. The bidder can meet this requirement in either of two ways. First, the bidder can meet the goal, documenting
commitments for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can
document adequate good faith efforts. This means that the bidder must show that it took all necessary and reasonable steps to
achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness to the objective, could
reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful.
II. In any situation in which you have established a contract goal, Part 26 requires you to use the good faith efforts
mechanism of this part. As a recipient, you have the responsibility to make a fair and reasonable judgment whether a bidder
that did not meet the goal made adequate good faith efforts. It is important for you to consider the quality, quantity, and intensity
of the different kinds of efforts that the bidder has made, based on the regulations and the guidance in this Appendix.
The efforts employed by the bidder should be those that one could reasonably expect a bidder to take if the bidder were
actively and aggressively trying to obtain DBE participation sufficient to meet the DBE contract goal. Mere pro forma efforts are
not good faith efforts to meet the DBE contract requirements. We emphasize, however, that your determination concerning the
sufficiency of the firm's good faith efforts is a judgment call. Determinations should not be made using quantitative formulas.
III. The Department also strongly cautions you against requiring that a bidder meet a contract goal (i.e., obtain a specified
amount of DBE participation) in order to be awarded a contract, even though the bidder makes an adequate good faith efforts
showing. This rule specifically prohibits you from ignoring bona fide good faith efforts.
IV. The following is a list of types of actions which you should consider as part of the bidder's good faith efforts to obtain
DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive. Other factors
or types of efforts may be relevant in appropriate cases.
A. (1) Conducing market research to identify small business contractors and suppliers and soliciting through all reasonable
and available means the interest of all certified DBEs that have the capability to perform the work of the contract. This may
include attendance at pre-bid and business matchmaking meetings and events, advertising and/or written notices, posting of
Notices of Sources Sought and/or Requests for Proposals, written notices or emails to all DBEs listed in the State's directory of
transportation firms that specialize in the areas of work desired (as noted in the DBE directory) and which are located in the
area or surrounding areas of the project.
(2) The bidder should solicit this interest as early in the acquisition process as practicable to allow the DBEs to respond to
the solicitation and submit a timely offer for the subcontract. The bidder should determine with certainty if the DBEs are
interested by taking appropriate steps to follow up initial solicitations.
B. Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be
achieved. This includes, where appropriate, breaking out contract work items into economically feasible units (for example,
smaller tasks or quantities) to facilitate DBE participation, even when the prime contractor might otherwise prefer to perform
these work items with its own forces. This may include, where possible, establishing flexible timeframes for performance and
delivery schedules in a manner that encourages and facilitates DBE participation.
C. Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in
a timely manner to assist them in responding to a solicitation with their offer for the subcontract.
D. (1) Negotiating in good faith with interested DBEs. It is the bidder's responsibility to make a portion of the work available
to DBE subcontractors and suppliers and to select those portions of the work or material needs consistent with the available
DBE subcontractors and suppliers, so as to facilitate DBE participation. Evidence of such negotiation includes the names,
addresses, and telephone numbers of DBEs that were considered; a description of the information provided regarding the plans
and specifications for the work selected for subcontracting; and evidence as to why additional Agreements could not be
reached for DBEs to perform the work.
(2) A bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including
DBE subcontractors, and would take a firm's price and capabilities as well as contract goals into consideration. However, the
fact that there may be some additional costs involved in finding and using DBEs is not in itself sufficient reason for a bidder's
failure to meet the contract DBE goal, as long as such costs are reasonable. Also, the ability or desire of a prime contractor to
perform the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith
efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or
unreasonable.
E. (1) Not rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their
capabilities. The contractor's standing within its industry, membership in specific groups, organizations, or associations and
political or social affiliations (for example union vs. non-union status) are not legitimate causes for the rejection or non-
solicitation of bids in the contractor's efforts to meet the project goal. Another practice considered an insufficient good faith effort
is the rejection of the DBE because its quotation for the work was not the lowest received. However, nothing in this paragraph
shall be construed to require the bidder or prime contractor to accept unreasonable quotes in order to satisfy contract goals.
(2) A prime contractor's inability to find a replacement DBE at the original price is not alone sufficient to support a finding
that good faith efforts have been made to replace the original DBE. The fact that the contractor has the ability and/or desire to
perform the contract work with its own forces does not relieve the contractor of the obligation to make good faith efforts to find a
replacement DBE, and it is not a sound basis for rejecting a prospective replacement DBE's reasonable quote.
F. Making efforts to assist interested DBEs in obtaining bonding, lines of credit, or insurance as required by the recipient or
contractor.
G. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or
services.
H. Effectively using the services of available minority/women community organizations; minority/women contractors'
groups; local, State, and Federal minority/women business assistance offices; and other organizations as allowed on a case-by-
case basis to provide assistance in the recruitment and placement of DBEs.
V. In determining whether a bidder has made good faith efforts, it is essential to scrutinize its documented efforts. At a
minimum, you must review the performance of other bidders in meeting the contract goal. For example, when the apparent
successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with
additional efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the
goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with
other factors, as evidence of the apparent successful bidder having made good faith efforts. As provided in §26.53(b)(2)((vi),
you must also require the contractor to submit copies of each DBE and non-DBE subcontractor quote submitted to the bidder
when a non-DBE subcontractor was selected over a DBE for work on the contract to review whether DBE prices were
substantially higher; and contact the DBEs listed on a contractor's solicitation to inquire as to whether they were contacted by
the prime. Pro forma mailings to DBEs requesting bids are not alone sufficient to satisfy good faith efforts under the rule.
VI. A promise to use DBEs after contract award is not considered to be responsive to the contract solicitation or to
constitute good faith efforts.
[79 FR 59600, Oct. 2, 2014]
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Appendix B to Part 26—Uniform Report of DBE Awards or Commitments and Payments Form
INSTRUCTIONS FOR COMPLETING THE UNIFORM REPORT OF DBE AWARDS/COMMITMENTS AND PAYMENTS
Recipients of Department of Transportation (DOT) funds are expected to keep accurate data regarding the contracting
opportunities available to firms paid for with DOT dollars. Failure to submit contracting data relative to the DBE program will
result in noncompliance with Part 26. All dollar values listed on this form should represent the DOT share attributable to the
Operating Administration (OA): Federal Highway Administration (FHWA), Federal Aviation Administration (FAA) or Federal
Transit Administration (FTA) to which this report will be submitted.
1. Indicate the DOT (OA) that provides your Federal financial assistance. If assistance comes from more than one OA, use
separate reporting forms for each OA. If you are an FTA recipient, indicate your Vendor Number in the space provided.
2. If you are an FAA recipient, indicate the relevant AIP Numbers covered by this report. If you are an FTA recipient,
indicate the Grant/Project numbers covered by this report. If more than ten attach a separate sheet.
3. Specify the Federal fiscal year (i.e., October 1-September 30) in which the covered reporting period falls.
4. State the date of submission of this report.
5. Check the appropriate box that indicates the reporting period that the data provided in this report covers. For FHWA and
FTA recipients, if this report is due June 1, data should cover October 1-March 31. If this report is due December 1, data should
cover April 1-September 30. If the report is due to the FAA, data should cover the entire year.
6. Provide the name and address of the recipient.
7. State your overall DBE goal(s) established for the Federal fiscal year of the report being submitted to and approved by
the relevant OA. Your overall goal is to be reported as well as the breakdown for specific Race Conscious and Race Neutral
projections (both of which include gender-conscious/neutral projections). The Race Conscious projection should be based on
measures that focus on and provide benefits only for DBEs. The use of contract goals is a primary example of a race conscious
measure. The Race Neutral projection should include measures that, while benefiting DBEs, are not solely focused on DBE
firms. For example, a small business outreach program, technical assistance, and prompt payment clauses can assist a wide
variety of businesses in addition to helping DBE firms.
Section A: Awards and Commitments Made During This Period
The amounts in items 8(A)-10(I) should include all types of prime contracts awarded and all types of subcontracts awarded
or committed, including: professional or consultant services, construction, purchase of materials or supplies, lease or purchase
of equipment and any other types of services. All dollar amounts are to reflect only the Federal share of such contracts and
should be rounded to the nearest dollar.
Line 8: Prime contracts awarded this period: The items on this line should correspond to the contracts directly between the
recipient and a supply or service contractor, with no intermediaries between the two.
8(A). Provide the total dollar amount for all prime contracts assisted with DOT funds and awarded during this reporting
period. This value should include the entire Federal share of the contracts without removing any amounts associated with
resulting subcontracts.
8(B). Provide the total number of all prime contracts assisted with DOT funds and awarded during this reporting period.
8(C). From the total dollar amount awarded in item 8(A), provide the dollar amount awarded in prime contracts to certified
DBE firms during this reporting period. This amount should not include the amounts sub contracted to other firms.
8(D). From the total number of prime contracts awarded in item 8(B), specify the number of prime contracts awarded to
certified DBE firms during this reporting period.
8(E&F). This field is closed for data entry. Except for the very rare case of DBE-set asides permitted under 49 CFR part 26,
all prime contracts awarded to DBES are regarded as race-neutral.
8(G). From the total dollar amount awarded in item 8(C), provide the dollar amount awarded to certified DBEs through the
use of Race Neutral methods. See the definition of Race Neutral in item 7 and the explanation in item 8 of project types to
include.
8(H). From the total number of prime contracts awarded in 8(D), specify the number awarded to DBEs through Race
Neutral methods.
8(I). Of all prime contracts awarded this reporting period, calculate the percentage going to DBEs. Divide the dollar amount
in item 8(C) by the dollar amount in item 8(A) to derive this percentage. Round percentage to the nearest tenth.
Line 9: Subcontracts awarded/committed this period: Items 9(A)-9(I) are derived in the same way as items 8(A)-8(I), except
that these calculations should be based on subcontracts rather than prime contracts. Unlike prime contracts, which may only be
awarded, subcontracts may be either awarded or committed.
9(A). If filling out the form for general reporting, provide the total dollar amount of subcontracts assisted with DOT funds
awarded or committed during this period. This value should be a subset of the total dollars awarded in prime contracts in 8(A),
and therefore should never be greater than the amount awarded in prime contracts. If filling out the form for project reporting,
provide the total dollar amount of subcontracts assisted with DOT funds awarded or committed during this period. This value
should be a subset of the total dollars awarded or previously in prime contracts in 8(A). The sum of all subcontract amounts in
consecutive periods should never exceed the sum of all prime contract amounts awarded in those periods.
9(B). Provide the total number of all sub contracts assisted with DOT funds that were awarded or committed during this
reporting period.
9(C). From the total dollar amount of sub contracts awarded/committed this period in item 9(A), provide the total dollar
amount awarded in sub contracts to DBEs.
9(D). From the total number of sub contracts awarded or committed in item 9(B), specify the number of sub contracts
awarded or committed to DBEs.
9(E). From the total dollar amount of sub contracts awarded or committed to DBEs this period, provide the amount in
dollars to DBEs using Race Conscious measures.
9(F). From the total number of sub contracts awarded orcommitted to DBEs this period, provide the number of sub
contracts awarded or committed to DBEs using Race Conscious measures.
9(G). From the total dollar amount of sub contracts awarded/committed to DBEs this period, provide the amount in dollars
to DBEs using Race Neutral measures.
9(H). From the total number of sub contracts awarded/committed to DBEs this period, provide the number of sub contracts
awarded to DBEs using Race Neutral measures.
9(I). Of all subcontracts awarded this reporting period, calculate the percentage going to DBEs. Divide the dollar amount in
item 9(C) by the dollar amount in item 9(A) to derive this percentage. Round percentage to the nearest tenth.
Line 10: Total contracts awarded or committed this period. These fields should be used to show the total dollar value and
number of contracts awarded to DBEs and to calculate the overall percentage of dollars awarded to DBEs.
10(A)-10(B). These fields are unavailable for data entry.
10(C-H). Combine the total values listed on the prime contracts line (Line 8) with the corresponding values on the
subcontracts line (Line 9).
10(I). Of all contracts awarded this reporting period, calculate the percentage going to DBEs. Divide the total dollars
awarded to DBEs in item 10(C) by the dollar amount in item 8(A) to derive this percentage. Round percentage to the nearest
tenth.
Section B: Breakdown by Ethnicity & Gender of Contracts Awarded to DBEs This Period
11-17. Further breakdown the contracting activity with DBE involvement. The Total Dollar Amount to DBEs in 17(C) should
equal the Total Dollar Amount to DBEs in 10(C). Likewise the total number of contracts to DBEs in 17(F) should equal the Total
Number of Contracts to DBEs in 10(D).
Line 16: The “Non-Minority” category is reserved for any firms whose owners are not members of the presumptively
disadvantaged groups already listed, but who are either “women” OR eligible for the DBE program on an individual basis. All
DBE firms must be certified by the Unified Certification Program to be counted in this report.
Section C: Payments on Ongoing Contracts
Line 18(A-E). Submit information on contracts that are currently in progress. All dollar amounts are to reflect only the
Federal share of such contracts, and should be rounded to the nearest dollar.
18(A). Provide the total dollar amount paid to all firms performing work on contracts.
18(B). Provide the total number of contracts where work was performed during the reporting period.
18(C). From the total number of contracts provided in 18(A) provide the total number of contracts that are currently being
performed by DBE firms for which payments have been made.
18(D). From the total dollar amount paid to all firms in 18(A), provide the total dollar value paid to DBE firms currently
performing work during this period.
18(E). Provide the total number of DBE firms that received payment during this reporting period. For example, while 3
contracts may be active during this period, one DBE firm may be providing supplies or services on all three contracts. This field
should only list the number of DBE firms performing work.
18(F). Of all payments made during this period, calculate the percentage going to DBEs. Divide the total dollar value to
DBEs in item 18(D) by the total dollars of all payments in 18(B). Round percentage to the nearest tenth.
Section D: Actual Payments on Contracts Completed This Reporting Period
This section should provide information only on contracts that are closed during this period. All dollar amounts are to reflect
the entire Federal share of such contracts, and should be rounded to the nearest dollar.
19(A). Provide the total number of contracts completed during this reporting period that used Race Conscious measures.
Race Conscious contracts are those with contract goals or another race conscious measure.
19(B). Provide the total dollar value of prime contracts completed this reporting period that had race conscious measures.
19(C). From the total dollar value of prime contracts completed this period in 19(B), provide the total dollar amount of
dollars awarded or committed to DBE firms in order to meet the contract goals. This applies only to Race Conscious contracts.
19(D). Provide the actual total DBE participation in dollars on the race conscious contracts completed this reporting period.
19(E). Of all the contracts completed this reporting period using Race Conscious measures, calculate the percentage of
DBE participation. Divide the total dollar amount to DBEs in item 19(D) by the total dollar value provided in 19(B) to derive this
percentage. Round to the nearest tenth.
20(A)-20(E). Items 21(A)-21(E) are derived in the same manner as items 19(A)-19(E), except these figures should be
based on contracts completed using Race Neutral measures.
20(C). This field is closed.
21(A)-21(D). Calculate the totals for each column by adding the race conscious and neutral figures provided in each row
above.
21(C). This field is closed.
21(E). Calculate the overall percentage of dollars to DBEs on completed contracts. Divide the Total DBE participation dollar
value in 21(D) by the Total Dollar Value of Contracts Completed in 21(B) to derive this percentage. Round to the nearest tenth.
23. Name of the Authorized Representative preparing this form.
24. Signature of the Authorized Representative.
25. Phone number of the Authorized Representative.
**Submit your completed report to your Regional or Division Office.
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[79 FR 59601, Oct. 2, 2014]
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Appendix C to Part 26—DBE Business Development Program Guidelines
The purpose of this program element is to further the development of DBEs, including but not limited to assisting them to
move into non-traditional areas of work and/or compete in the marketplace outside the DBE program, via the provision of
training and assistance from the recipient.
(A) Each firm that participates in a recipient's business development program (BDP) program is subject to a program term
determined by the recipient. The term should consist of two stages; a developmental stage and a transitional stage.
(B) In order for a firm to remain eligible for program participation, it must continue to meet all eligibility criteria contained in
part 26.
(C) By no later than 6 months of program entry, the participant should develop and submit to the recipient a comprehensive
business plan setting forth the participant's business targets, objectives and goals. The participant will not be eligible for
program benefits until such business plan is submitted and approved by the recipient. The approved business plan will
constitute the participant's short and long term goals and the strategy for developmental growth to the point of economic
viability in non-traditional areas of work and/or work outside the DBE program.
(D) The business plan should contain at least the following:
(1) An analysis of market potential, competitive environment and other business analyses estimating the program
participant's prospects for profitable operation during the term of program participation and after graduation from the program.
(2) An analysis of the firm's strengths and weaknesses, with particular attention paid to the means of correcting any
financial, managerial, technical, or labor conditions which could impede the participant from receiving contracts other than those
in traditional areas of DBE participation.
(3) Specific targets, objectives, and goals for the business development of the participant during the next two years,
utilizing the results of the analysis conducted pursuant to paragraphs (C) and (D)(1) of this appendix;
(4) Estimates of contract awards from the DBE program and from other sources which are needed to meet the objectives
and goals for the years covered by the business plan; and
(5) Such other information as the recipient may require.
(E) Each participant should annually review its currently approved business plan with the recipient and modify the plan as
may be appropriate to account for any changes in the firm's structure and redefined needs. The currently approved plan should
be considered the applicable plan for all program purposes until the recipient approves in writing a modified plan. The recipient
should establish an anniversary date for review of the participant's business plan and contract forecasts.
(F) Each participant should annually forecast in writing its need for contract awards for the next program year and the
succeeding program year during the review of its business plan conducted under paragraph (E) of this appendix. Such forecast
should be included in the participant's business plan. The forecast should include:
(1) The aggregate dollar value of contracts to be sought under the DBE program, reflecting compliance with the business
plan;
(2) The aggregate dollar value of contracts to be sought in areas other than traditional areas of DBE participation;
(3) The types of contract opportunities being sought, based on the firm's primary line of business; and
(4) Such other information as may be requested by the recipient to aid in providing effective business development
assistance to the participant.
(G) Program participation is divided into two stages; (1) a developmental stage and (2) a transitional stage. The
developmental stage is designed to assist participants to overcome their social and economic disadvantage by providing such
assistance as may be necessary and appropriate to enable them to access relevant markets and strengthen their financial and
managerial skills. The transitional stage of program participation follows the developmental stage and is designed to assist
participants to overcome, insofar as practical, their social and economic disadvantage and to prepare the participant for leaving
the program.
(H) The length of service in the program term should not be a pre-set time frame for either the developmental or transitional
stages but should be figured on the number of years considered necessary in normal progression of achieving the firm's
established goals and objectives. The setting of such time could be factored on such items as, but not limited to, the number of
contracts, aggregate amount of the contract received, years in business, growth potential, etc.
(I) Beginning in the first year of the transitional stage of program participation, each participant should annually submit for
inclusion in its business plan a transition management plan outlining specific steps to promote profitable business operations in
areas other than traditional areas of DBE participation after graduation from the program. The transition management plan
should be submitted to the recipient at the same time other modifications are submitted pursuant to the annual review under
paragraph (E) of this section. The plan should set forth the same information as required under paragraph (F) of steps the
participant will take to continue its business development after the expiration of its program term.
(J) When a participant is recognized as successfully completing the program by substantially achieving the targets,
objectives and goals set forth in its program term, and has demonstrated the ability to compete in the marketplace, its further
participation within the program may be determined by the recipient.
(K) In determining whether a concern has substantially achieved the goals and objectives of its business plan, the following
factors, among others, should be considered by the recipient:
(1) Profitability;
(2) Sales, including improved ratio of non-traditional contracts to traditional-type contracts;
(3) Net worth, financial ratios, working capital, capitalization, access to credit and capital;
(4) Ability to obtain bonding;
(5) A positive comparison of the DBE's business and financial profile with profiles of non-DBE businesses in the same area
or similar business category; and
(6) Good management capacity and capability.
(L) Upon determination by the recipient that the participant should be graduated from the developmental program, the
recipient should notify the participant in writing of its intent to graduate the firm in a letter of notification. The letter of notification
should set forth findings, based on the facts, for every material issue relating to the basis of the program graduation with
specific reasons for each finding. The letter of notification should also provide the participant 45 days from the date of service of
the letter to submit in writing information that would explain why the proposed basis of graduation is not warranted.
(M) Participation of a DBE firm in the program may be discontinued by the recipient prior to expiration of the firm's program
term for good cause due to the failure of the firm to engage in business practices that will promote its competitiveness within a
reasonable period of time as evidenced by, among other indicators, a pattern of inadequate performance or unjustified
delinquent performance. Also, the recipient can discontinue the participation of a firm that does not actively pursue and bid on
contracts, and a firm that, without justification, regularly fails to respond to solicitations in the type of work it is qualified for and
in the geographical areas where it has indicated availability under its approved business plan. The recipient should take such
action if over a 2-year period a DBE firm exhibits such a pattern.
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Appendix D to Part 26—Mentor-Protégé Program Guidelines
(A) The purpose of this program element is to further the development of DBEs, including but not limited to assisting them
to move into non-traditional areas of work and/or compete in the marketplace outside the DBE program, via the provision of
training and assistance from other firms. To operate a mentor-protégé program, a recipient must obtain the approval of the
concerned operating administration.
(B)(1) Any mentor-protégé relationship shall be based on a written development plan, approved by the recipient, which
clearly sets forth the objectives of the parties and their respective roles, the duration of the arrangement and the services and
resources to be provided by the mentor to the protégé. The formal mentor-protégé agreement may set a fee schedule to cover
the direct and indirect cost for such services rendered by the mentor for specific training and assistance to the protégé through
the life of the agreement. Services provided by the mentor may be reimbursable under the FTA, FHWA, and FAA programs.
(2) To be eligible for reimbursement, the mentor's services provided and associated costs must be directly attributable and
properly allowable to specific individual contracts. The recipient may establish a line item for the mentor to quote the portion of
the fee schedule expected to be provided during the life of the contract. The amount claimed shall be verified by the recipient
and paid on an incremental basis representing the time the protégé is working on the contract. The total individual contract
figures accumulated over the life of the agreement shall not exceed the amount stipulated in the original mentor/protégé
agreement.
(C) DBEs involved in a mentor-protégé agreement must be independent business entities which meet the requirements for
certification as defined in subpart D of this part. A protégé firm must be certified before it begins participation in a mentor-
protégé arrangement. If the recipient chooses to recognize mentor/protégé agreements, it should establish formal general
program guidelines. These guidelines must be submitted to the operating administration for approval prior to the recipient
executing an individual contractor/ subcontractor mentor-protégé agreement.
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Appendix E to Part 26—Individual Determinations of Social and Economic Disadvantage
The following guidance is adapted, with minor modifications, from SBA regulations concerning social and economic
disadvantage determinations (see 13 CFR 124.103(c) and 124.104).
SOCIAL DISADVANTAGE
I. Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias within
American society because of their identities as members of groups and without regard to their individual qualities. Social
disadvantage must stem from circumstances beyond their control. Evidence of individual social disadvantage must include the
following elements:
(A) At least one objective distinguishing feature that has contributed to social disadvantage, such as race, ethnic origin,
gender, disability, long-term residence in an environment isolated from the mainstream of American society, or other similar
causes not common to individuals who are not socially disadvantaged;
(B) Personal experiences of substantial and chronic social disadvantage in American society, not in other countries; and
(C) Negative impact on entry into or advancement in the business world because of the disadvantage. Recipients will
consider any relevant evidence in assessing this element. In every case, however, recipients will consider education,
employment and business history, where applicable, to see if the totality of circumstances shows disadvantage in entering into
or advancing in the business world.
(1) Education. Recipients will consider such factors as denial of equal access to institutions of higher education and
vocational training, exclusion from social and professional association with students or teachers, denial of educational honors
rightfully earned, and social patterns or pressures which discouraged the individual from pursuing a professional or business
education.
(2) Employment. Recipients will consider such factors as unequal treatment in hiring, promotions and other aspects of
professional advancement, pay and fringe benefits, and other terms and conditions of employment; retaliatory or discriminatory
behavior by an employer or labor union; and social patterns or pressures which have channeled the individual into non-
professional or non-business fields.
(3) Business history. The recipient will consider such factors as unequal access to credit or capital, acquisition of credit or
capital under commercially unfavorable circumstances, unequal treatment in opportunities for government contracts or other
work, unequal treatment by potential customers and business associates, and exclusion from business or professional
organizations.
II. With respect to paragraph I.(A) of this appendix, the Department notes that people with disabilities have
disproportionately low incomes and high rates of unemployment. Many physical and attitudinal barriers remain to their full
participation in education, employment, and business opportunities available to the general public. The Americans with
Disabilities Act (ADA) was passed in recognition of the discrimination faced by people with disabilities. It is plausible that many
individuals with disabilities—especially persons with severe disabilities (e.g., significant mobility, vision, or hearing impairments)
—may be socially and economically disadvantaged.
III. Under the laws concerning social and economic disadvantage, people with disabilities are not a group presumed to be
disadvantaged. Nevertheless, recipients should look carefully at individual showings of disadvantage by individuals with
disabilities, making a case-by-case judgment about whether such an individual meets the criteria of this appendix. As public
entities subject to Title II of the ADA, recipients must also ensure their DBE programs are accessible to individuals with
disabilities. For example, physical barriers or the lack of application and information materials in accessible formats cannot be
permitted to thwart the access of potential applicants to the certification process or other services made available to DBEs and
applicants.
ECONOMIC DISADVANTAGE
(A) General. Economically disadvantaged individuals are socially disadvantaged individuals whose ability to compete in the
free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same
or similar line of business who are not socially disadvantaged.
(B) Submission of narrative and financial information. (1) Each individual claiming economic disadvantage must describe
the conditions which are the basis for the claim in a narrative statement, and must submit personal financial information.
(2) [Reserved]
(C) Factors to be considered. In considering diminished capital and credit opportunities, recipients will examine factors
relating to the personal financial condition of any individual claiming disadvantaged status, including personal income for the
past two years (including bonuses and the value of company stock given in lieu of cash), personal net worth, and the fair market
value of all assets, whether encumbered or not. Recipients will also consider the financial condition of the applicant compared
to the financial profiles of small businesses in the same primary industry classification, or, if not available, in similar lines of
business, which are not owned and controlled by socially and economically disadvantaged individuals in evaluating the
individual's access to credit and capital. The financial profiles that recipients will compare include total assets, net sales, pre-tax
profit, sales/working capital ratio, and net worth.
(D) Transfers within two years. (1) Except as set forth in paragraph (D)(2) of this appendix, recipients will attribute to an
individual claiming disadvantaged status any assets which that individual has transferred to an immediate family member, or to
a trust, a beneficiary of which is an immediate family member, for less than fair market value, within two years prior to a
concern's application for participation in the DBE program, unless the individual claiming disadvantaged status can demonstrate
that the transfer is to or on behalf of an immediate family member for that individual's education, medical expenses, or some
other form of essential support.
(2) Recipients will not attribute to an individual claiming disadvantaged status any assets transferred by that individual to an
immediate family member that are consistent with the customary recognition of special occasions, such as birthdays,
graduations, anniversaries, and retirements.
(3) In determining an individual's access to capital and credit, recipients may consider any assets that the individual
transferred within such two-year period described by paragraph (D)(1) of this appendix that are not considered in evaluating the
individual's assets and net worth (e.g., transfers to charities).
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35559, June 16, 2003]
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Appendix F to Part 26—Uniform Certification Application Form
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[79 FR 59603, Oct. 2, 2014]
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Appendix G to Part 26—Personal Net Worth Statement
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[79 FR 59617, Oct. 2, 2014]
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APPENDIX A
AUGUSTA, GEORGIA
SUMMARY OF DISADVANTAGED BUSINESS ENTERPRISE (DBE)
MONTHLY SUBCONTRACTORS PAID REPORT
AUGUSTA, GEORGIA
Summary of Disadvantaged Business Enterprise (DBE) - Monthly Subcontractors Paid Report
Reporting Period (Month/Year) Report Number Date Prepared
1) Project Name 2) Project Location
3) Contract Number 4) Original Contract Award
Amount
5) Contract Award Date
6) Current Contract
Value
7) AUGUSTA,
GEORGIA Payment to
Prime This Month
8) Total Amount Paid to
Prime to Date
9) Date of Last Progress Payment Received from
AUGUSTA, GEORGIA
10) Percent of Project Complete 11) DBE Goal Percentage (committed)
12) Prime Contractor 13) Contact Person
14) Street Address 15) City/State/ZIP
16) Area Code/Phone No. 17) Email Address
18) SUBCONTRACTOR/SUPPLIER
Dollars Paid
This Month
Dollar
Amount
Paid to Date
Schedule Activity ID
(Construction only)
Type of Work Performed
Original
Dollar
Amount
Committed
Dollar +/-
resulting from
Change Order
Activity
Subcontractor/Supplier #1 ↓ ↓ ↓ ↓ ↓ ↓ ↓
Name
Address
Area Code/Phone
Contact Person
Subcontractor/Supplier #2 ↓ ↓ ↓ ↓ ↓ ↓ ↓
Name
Address
Area Code/Phone
Contact Person
Subcontractor/Supplier #3 ↓ ↓ ↓ ↓ ↓ ↓ ↓
Name
Address
Area Code/Phone
Contact Person
↓ ↓ ↓ ↓ ↓ ↓
Page 1 of 4
Completed By:
AUGUSTA, GEORGIA
Summary of Disadvantaged Business Enterprise (DBE) - Monthly Subcontractors Paid Report
Reporting Period (Month/Year) Report Number Date Prepared
Name Signature Date
Page 2 of 4
Subcontractor/Supplier #4 ↓ ↓ ↓ ↓ ↓ ↓ ↓ ↓ ↓ ↓
Name
Address
Area Code/Phone
Contact Person
Subcontractor/Supplier #5 ↓ ↓ ↓ ↓ ↓ ↓ ↓
Name
Address
Area Code/Phone
Contact Person
Subcontractor/Supplier #6 ↓ ↓ ↓ ↓ ↓ ↓ ↓
Name
Address
Area Code/Phone
Contact Person
INSTRUCTIONS
The Prime shall make prompt payment of all monies due and owed to DBE and non-DBE firms within 15 business days upon receipt of payment from AUGUSTA,
GEORGIA (AUGUSTA, GEORGIA) as per Contract Agreement. Payment of retention shall be made to all DBE and non-DBE subcontractors within 15 days after
satisfactory completion of the subcontracted work.
This form is due to AUGUSTA, GEORGIA by the 15th of each month and should reflect all payments made to subs through the last day of the previous month.
The Prime must report monthly, even if the sub(s) did not perform any work for the previous month. Please forward signed documents by email and/or fax to
AUGUSTA, GEORGIA's DBE Liaison Officer.
AUGUSTA, GEORGIA
Summary of Disadvantaged Business Enterprise (DBE) - Monthly Subcontractors Paid Report
Reporting Period (Month/Year) Report Number Date Prepared
Invoice Payment History
DBE
Subcontractors/Suppliers
Sub/Supplier
#1
Sub/Supplier
#2
Sub/Supplier
#3
Sub/Supplier
#4
Sub/Supplier
#5
Sub/Supplier
#6
DBE
Sub/Supplier
Total
Invoice
Numbers
Invoice Date and
Date Paid Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $ Amount Paid $
GRAND TOTAL
(Paid to Date)
Page 3 of 4
AUGUSTA, GEORGIA
Summary of Disadvantaged Business Enterprise (DBE) - Monthly Subcontractors Paid Report
Reporting Period (Month/Year) Report Number Date Prepared
SUCCESSFUL BIDDER:
Instructions – Summary of Monthly DBE Payments Information
This form requires specific information regarding the disadvantaged business enterprise subcontractors paid on this
construction contract.
The form must be completed for all DBEs paid for each monthly period. The form requires that the Reporting Period
(month/year) be included. A Report Number should also be completed. This field should include a sequential number with the
first form having number “1.” The date prepared should also be included.
IMPORTANT: Identify all DBE firms that were paid during the reporting period for the project, regardless of tier. Names of the
First Tier DBE Subcontractors and their respective item(s) of work listed should be consistent, where applicable, with the names
and items of work in the “List of Subcontractors” submitted with your bid.
There is a column for the “Dollars Paid This Month.” Enter the Total amount paid for each DBE firm for the reporting period.
Also include the total amount paid to date, which shall include the amount paid for the current reporting period.
Include the Schedule Activity ID for construction contracts. Include a brief description for the type of work performed. The
original dollar amount committed to the DBE firm should be included in the appropriate Column and any increase or decrease in
the subcontract amount resulting from a change order shall be included in the “Dollar +/- resulting from Change Order Activity”
column.
The Summary of Monthly DBE Payments report must be signed and dated by the prime contractor’s representative that is
responsible for reporting DBE compliance matters. The form must be submitted no later than the 15th day of each month.
Page 4 of 4
Administrative Services Committee Meeting
2/13/2018 1:15 PM
Adoption of the 2018 Augusta, Georgia DBE Policy Statement and Program
Department:Compliance Department
Presenter:Kellie Irving
Caption:Adopt the 2018 Augusta, Georgia Disadvantaged Business
Enterprise (DBE) Policy Statement and Program for USDOT
Federal Transit Administration (FTA) funded projects.
Background:Augusta, Georgia receives federal financial assistance from the
Department of Transportation, and as a condition of receiving this
assistance, Augusta, Georgia assures it will comply with 49 CFR
Part 26. Augusta, Georgia ensures that DBEs, as defined in 49
CFR Part 26, have an equal opportunity to receive and participate
in USDOT assisted contracts.
Analysis:The Augusta, Georgia DBE Policy Statement and Program
provides detailed guidelines on administering and monitoring the
federal DBE program relative to FTA funded projects for Augusta
Public Transit.
Financial Impact:Since Augusta, Georgia has received a grant of $250,000 or more
in FTA planning capital, and/or operating assistance in a federal
fiscal year, Augusta, Georgia will carry out this program until all
funds from DOT financial assistance have been expended.
Augusta, Georgia will provide to DOT updates representing
significant changes in the program.
Alternatives:There are no other alternatives. This 2018 Augusta, Georgia
Disadvantaged Business Enterprise (DBE) Policy Statement and
Program are required by federal law.
Recommendation:Adopt the 2018 Augusta, Georgia Disadvantaged Business
Enterprise (DBE) Policy Statement and Program for USDOT
Federal Transit Administration (FTA) funded projects.
Funds are Available There are no funds required to adopt this policy and program.
in the Following
Accounts:
Without an adopted policy statement and program, Augusta,
Georgia could face a fine or penalty imposed by FTA.
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
_J LRICHMONO COUNTY I FASTER.
TAX COMMISSIONER'S OFFICE FRIENDLIER.
STEVEN 8. KENDRICK TAX COMMISSIONER EX-OFFICIO SHERIFF
TEDERELL C. JOHNSON CHIEF DEPUTY BETTER. TAX COMMISSIONER
535 Telfair Street I Suite 100 I Augusta, GA 30901 706-821-2391 ph I 706-821-2488 fx I arctax.com
Commission Meeting Agenda 2/13/2018 2:00 PM
Motion to merge two part-time positions to create one full time Tax Clerk Position
Department: Tax Commissioner's Office
Department: Tax Commissioner's Office
Caption: Motion to approve merging two part-time positions to create one full-time Communication Specialist position
Background: The Tax Commissioner's Office is working on a project with Utilities that will require a full time staff member. This collaboration will save the Utilities Department time, money, and provide them with easier access to their data.
Analysis: NIA
Financial Impact: The Utilities department is estimated to save approximately $50,000-
$60,000 annually after implementation. (Year 2)
Alternative: Not Approve
Recommendation: Approve
Funds are available in the following Account: 101015610/5111210-No additional funding required
REVIEWED AND APPORVED BY:
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Administrative Services Committee Meeting
2/13/2018 1:15 PM
Create Communication Specialist Position
Department:Tax Commissioner Office
Presenter:Aliegha Brigham
Caption:Motion to approve merging two part-time positions to create one
full-time Communication Specialist Position.
Background:See attachment for further details.
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Administrative Services Committee Meeting
2/13/2018 1:15 PM
FY2017 Consolidated Annual Performance and Evaluation Report (CAPER)
Department:Housing & Community Development
Presenter:Hawthorne Welcher, Jr. & Essential Staff
Caption:Approval for HCD to publish advertisement for a 15-day Public
Comment per the Citizen Participation Plan and submit the 2017
Consolidated Annual Performance and Evaluation Report
(CAPER) report to HUD thereafter once comments are received
with no return to Commission.
Background:In order to fulfill statutory and regulatory requirements mandated
by the U.S. Department of Housing and Urban Development with
regard to the 2015-2019 Consolidated Plan, the City of Augusta is
required to make available for public comment the 2017
Consolidated Annual Performance and Evaluation Report
(CAPER) which provides the jurisdiction an opportunity to
evaluate its overall progress in carrying out priorities and specific
objectives identified in its Consolidated Plan and its 2017 Annual
Action Plan. The 2017 Consolidated Annual Performance and
Evaluation Report (CAPER) summarizes the results of activities
that have taken place during Program Year 2017. The
performance report must include a description of the resources
made available, the investment of available resources, the
geographic distribution and location of investments, the families
and persons assisted (including the racial and ethnic demographics
of persons assisted), actions taken to affirmatively further fair
housing, and other actions indicated in the Consolidated Plan and
the Action Plan. The importance of timely and accurate
performance reports cannot be overstated. Performance reporting
meets three basic purposes: • Provides HUD with necessary
information to meet its statutory requirement to assess each
grantee's ability to carry out relevant CPD programs in
compliance with all applicable rules and regulations; • Provides
information necessary for HUD's Annual Report to Congress, also
statutorily mandated; • Provides grantees an opportunity to
describe to citizens their successes in revitalizing deteriorated
neighborhoods and meeting objectives stipulated in their
Consolidated Plan. Utilizing Community Development Block
Grant (CDBG), Emergency Solutions Grant (ESG), Housing
Opportunities for Persons with Aids (HOPWA) and HOME
Investment Partnership (HOME) funds; Augusta - Richmond
County, its sub-recipients and Partner Agencies utilize the
CAPER to substantiate progress in accomplishing the goals
outlined in this third year of the 2015-2019 5-Year Consolidated
Plan.
Analysis:The City received the following four (4) entitlement grants from
HUD during 2017: 1. Community Development Block Grant
(CDBG) is a formula-based program designed to develop viable
urban communities by providing decent housing, a suitable living
environment and expanding economic opportunities for persons of
low and moderate income. 2. Emergency Solutions Grant (ESG) is
a formula-based program targeted at improving the lives and
safety of persons who are homeless or at-risk of becoming
homeless. 3. HOME Investment Partnerships Program (HOME) is
a formula-based program designed to expand and improve the
supply of decent, safe and affordable housing and access to
homeownership for very low and low-income persons. 4. Housing
Opportunities for Persons with AIDS (HOPWA) Program is a
formula-based program designed to provide housing and
supportive services to low income persons living with HIV/AIDS
and their families. Within 90 days after the end of their program
year, state and local governments that receive CDBG, ESG,
HOME, and HOPWA funds directly from HUD must ensure that
all activity information in IDIS is up-to-date as of the last day of
the program year. This process is called end-of-year reporting,
fulfilling three purposes by the grantee: 1. Meeting CAPER and
program requirements. 2. Producing accurate IDIS reports, some
of which must be made available to the public. 3. Ensuring that
HUD will have the most current information during its annual
assessment of a grantee's performance.
Financial Impact:No Financial Report
Alternatives:None Recommended
Recommendation:Approval for HCD to publish advertisement for a 15-day Public
Comment per the Citizen Participation Plan and submit CAPER
report to HUD thereafter once comments are received with no
return to Commission.
Funds are Available
in the Following
Accounts:
Community Development Block Grant (CDBG) Emergency
Solutions Grant (ESG) HOME Investment Partnership Grant
(HOME) Housing Opportunities for Persons with AIDS Grant
(HOPWA)
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Administrative Services Committee Meeting Commission Chamber - ll30l20l}
ATTENDANCE:
Present: Hons. M. williams, chairman; Jefferson, vice chairman; Davis
and D. Williams, members.
Absent: Hon. Hardie Davis, Jr., Mayor.
ADMINISTRATIVE SERVICES
1. Motion to adopt the Augusta, Georgia ADA Self Evaluation & Transition Plan - Item
Final (ADA SETP). Action:
Approved
Motions
+'#:"t Motion Text Made By Seconded By
Motion to
^ ?DDrOVe.APProve vtotio, passes 4-
0.
2. Discuss the different commission's state and national association memberships Item
and costs associated with attending conferences, meetings and training sessions. Action:
(Requested by Commissioner Bill Fennoy) Approved
Motion
Result
Commissioner Commissioner
Mary Davis Dennis williams Passes
Made By seconded Bv Motion----------'t Result
Motions
Motion Motion Textr ype
Motion to approve tasking
the Administrator with
analyzing the fi gures and
Aoorove bringing back a report ofr r what it would cost each
commissioner after they
choose which conferences
they want to attend.
Commissioner
Andrew
Jefferson
Commissioner
Mary Davis Passes
Motion Passes 4-0.
3. Receive report from the General Counsel regarding Franchise Fees and how it Item
relates to Ms. Deborah Tolbert's January l6th presentation to the commission. Action:(Requested by Commissioner Marion Williams) Approved
Motions
i'#:" Motion Text Made By Seconded By Motion
Result
Motion to approve
a.-- . ---- receiving this item as commissioner commissioner
Approve information. Mary Davis Andrew Passes
Motion passes 4_0. -'---'t Jefferson
4. Motion to approve Housing and Community Development Department's ltem
(HCD's) procedural process relative to agreements/contracts/task ord-ers for the Action:
Laney Walker/Bethlehem Revitalization Project (for calendar year 2018). Approved
Motions
X:ji"' Motion Texr Made By Seconded By Motion
r YPe -.---- -" Result
Motion to
Approve ffi$,il'r"sses 4- fi:ilTiilil,L, ;,"#ts'jJ['- passes
0.
5. Motion to approve the minutes of the Administrative Services Committee held Item
on January 9,2018. Action:
Approved
Motions
X*:" Motion Text Made By Seconded By Motion
I YPe -'---- -J Result
Motion to approve.
Approve Ms. Davis out. Commissioner Commissioner
Motion passes 3_0. Andrew Jefferson Dennis Williams Passes
6. Discuss the practice of holding pre-meetings held by ARC Boards, Authorities Item
and Commissions. (Requested by Commissioner Marion \Milliams) Action:
Approved
Motions
Motion Motion
Type Motion Text Made By Seconded By Result
Motion to approve
Approve ffilf;Jlisitemas fi:ffi'iJr'.. s:ilt"#ilfi, passes
Motion Passes 4-0.
7. Approve a remedy/solution regarding pay differentials between staff attorneys Item
assigned to certain city departments @equested by Commissioner Marion Action:Williams) Disapproved
Motions
Y-o-'i" Motion TextI ype
Motion to approve
receiving this item as
a __. . ____ information. Mr. D.APProve williams out. Mr. M.
Williams votes No.
Motion Fails 2-1.
Made By Seconded By
Commissioner
Mary Davis
Commissioner
Andrew
Jefferson
Motion
Result
Fails
www.auqustaqa.gov
Administrative Services Committee Meeting
2/13/2018 1:15 PM
Minutes
Department:Clerk of Commission
Presenter:
Caption:Motion to approve the minutes of the Administrative Services
Committee held on January 30, 2018.
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY:
Page 1 of 21
IN THE STATE AND MAGISTRATE COURTS OF RICHMOND COUNTY
STATE OF GEORGIA
ORDER
Pursuant to the provisions of O.C.G.A. §42-8-101, the Judges of the State and Magistrate
Courts of Richmond County, with the approval of the consolidated government of Augusta,
Georgia, the governing authority of said County, do hereby continue the established county
system to provide probation supervision, counseling, collection services for all moneys to be
paid by a defendant according to the terms of the sentence imposed on the defendant as well as
any moneys which by operation of law are to be paid by the defendant in consequence of the
conviction, and other probation services for persons convicted in these courts and placed on
probation in Richmond County. These services of supervision, counseling and collection are to
be administered through a Probation Services Office (hereinafter “P.S.O.”) which is a division of
the Richmond County State Court.
The P.S.O. shall have probation and supervisory jurisdiction of all misdemeanor offenses
authorized by statute. The P.S.O. shall be authorized to provide any other such services as
deemed appropriate and as ordered by said Courts.
The P.S.O. of said Richmond County Courts is hereby authorized to collect a monthly
probation supervision fee of an amount set by the P.S.O. not to exceed the maximum amount
allowed by law, to be paid into the general funds of Augusta, Georgia, if such fee is authorized
by the sentencing judge and is contained in the sentencing order.
The P.S.O. is authorized by this Order to proceed with the supervision and enforcement
of any provisions of a defendant’s sentence by order of the courts, including the supervision and
Page 2 of 21
enforcement of a probated or suspended sentence, and to do any and all acts necessary and
proper to carry into effect the orders of these courts.
Richmond County Probation Services Advisory Board
There is hereby created the Richmond County Probation Services Board (hereinafter
“Board”). The Board shall be comprised of the Chief Judge of State Court, the Chief Judge of
Magistrate Court, the Augusta, Georgia Administrator and the Chair of the Public Safety
Committee. In the absence of said Judges, each court may, during said absence, substitute that
representative with another judge; and, any judge of said Courts may participate in discussions.
The Commission member’s term of service as a member of the Board will run concurrent with
the position as Chair of the Public Safety Committee. The Board shall have the following duties:
1. Prescribe the knowledge, skills and abilities required for Chief Probation Officer;
2. Recommend comments on the performance appraisal of the Chief Probation Officer
to the Chief Judge of State Court;
3. Approve the default supervision fee amount when such amount is not stated by the
sentencing court;
4. Review and approve standard operating procedures including supervision and other
procedures and make recommendations, including any changes, in that regard;
5. Review regular reports, such as those summarizing rates of compliance, fines and fee
collection, community service, and attendance at court-ordered programs; and
6. Consider and review requests from the Augusta, Georgia Board of Commissioners
regarding modifications to the probation services program or this Order.
Page 3 of 21
Chief Probation Officer and Probation Officers
There is hereby created position of Chief Probation Officer, as authorized and approved
by the governing authority of said county. The Chief Probation Officer shall be appointed by a
hiring panel and shall serve at the pleasure of the Chief Judge of State Court. The hiring panel
for the Chief Probation Officer shall consist of the Augusta, Georgia Administrator, the Augusta,
Georgia Human Resources Director, the Court Administrator of the State Court, and at least one
(1) outside consultant with probation expertise as agreed by the Chief Judge of the State Court
and the Augusta, Georgia Administrator. The Chief Probation Officer shall report directly to the
Chief Judge of State Court and as needed through his/her designee and shall serve at the will of
the Chief Judge of State Court. The Chief Probation Officer shall hire all Probation Officers,
Probation Office Supervisors and all support staff and such employees shall serve at the will of
the Chief Probation Officer. The Chief Probation Officer and other Probation Officers shall have
such duties, responsibilities, and authority as a probation officer under existing Georgia law,
except as may be inconsistent with this Order, the Official Code of Georgia Annotated, or except
as may be specifically modified from time-to-time, in writing by the Board. The Chief Judge of
State Court, in coordination with the Board and the Augusta, Georgia Human Resources
Department, shall establish a job description for the Chief Probation Officer, and other Probation
Officers and staff, which job description shall set out in such detail as deemed appropriate, the
duties, responsibilities, and authority of the Chief Probation Officer and Probation Officers and
staff.
Chief Probation Officer, Probation Officers and Staff
Officers and employees of the P.S.O. will at all times observe and comply with all laws,
ordinances, and regulations of the federal, state, and local governments which may in any
Page 4 of 21
manner affect the performance of this Agreement. Officers and employees of the P.S.O. shall
comply with the O.C.G.A. §42-8-101, et seq., as well as all standards and qualifications as set
forth by the DCS and/or P.O.S.T. and/or this Order and/or the Chief Judge of State Court, and
shall comply with any rules and regulations promulgated by the DCS Board, and/or P.O.S.T.
and/or the Chief Judge of State Court to include any amendments as may be made from time to
time. The standards and qualifications for officers and employees of the P.S.O. shall include:
1. Richmond County Probation Employee Requirements:
A. Administrative/Support Staff:
(1) Will be at least 18 years of age;
(2) Will receive training concerning and sign a confidentiality statement agreeing
to hold the identity of offenders and records confidential. A copy of the
statement will be maintained in the employee’s personnel file;
(3) Will sign a statement cosigned by the Chief Probation Officer that the
employee has received an orientation on the rules of the Department of
Community Supervision, (hereinafter “DCS”), as well as operations
guidelines relevant to that employee’s job duties. A copy of the statement will
be maintained in the employee’s personnel file; and,
(4) Consent to a criminal background check; and,
(5) All hires for administrative staff shall have the educational requirements
provided in DCS Board Rule 105-2-.09
(6) The following persons are not eligible for employment as an administrative or
support staff person:
a. A person convicted of a felony;
Page 5 of 21
b. A person with misdemeanor convictions sufficient to establish a pattern of
disregard for the law;
c. A person with a conviction, guilty plea or nolo contendere to any
misdemeanor involving moral turpitude;
d. A person with an outstanding warrant; and,
e. A person with pending charges for felony, domestic violence or
misdemeanors involving moral turpitude.
f. All training shall comply with DSC Board Rules 105-22-.09 and 105-2.12
B. Probation Officer Standards:
(1) Will be at least 21 years of age at time of appointment;
(2) Will be eligible to serve as a Probation Officer as defined in O.C.G.A. §42-8-
100, will be registered with DCS, approved by DCS and be in compliance
with all DCS training standards or have proof of successful completion of the
P.O.S.T. basic course of training for supervision of probationers and parolees,
or P.O.S.T. Certified as a peace officer. A Probation Officer terminated for
failure to maintain the ability to serve as a Probation officer is not eligible for
re-hire until they have obtained such designation.
(3) Will have completed a standard two-year college course of study (90 quarter
hours/60 semester hours) or have four years law enforcement experience at
the time of appointment;
(4) Documentation of education, law enforcement experience, P.O.S.T.
certification, and authorization to serve as a Probation officer pursuant to
O.C.G.A. §42-8-100 shall be maintained in the employee’s personnel file;
Page 6 of 21
(5) Will sign a statement cosigned by the Chief Probation Officer that the
employee has received an orientation on the rules of the DCS as well as
operations guidelines relevant to that employee’s job duties. A copy of the
statement will be maintained in the employee’s personnel file;
(6) Will receive training in and sign a confidentiality statement agreeing to hold
the identity of offenders and records confidential. A copy of the statement
will be maintained in the employee’s personnel file; and,
(7) Consent to a criminal background check; and,
(8) The following persons are not eligible for employment as a Probation Officer:
a. A person convicted of a felony;
b. A person with misdemeanor convictions sufficient to establish a pattern of
disregard for the law;
c. A person with a conviction, guilty plea or nolo contendere to any
misdemeanor involving moral turpitude;
d. A person with an outstanding warrant; and,
e. A person with pending charges for felony, domestic violence or
misdemeanors involving moral turpitude.
(9) Supervising Probation Officers: Probation Officers in positions where they
supervise other probation officers must be P.O.S.T. Certified as a Georgia
peace officer.
C. Chief Probation Officer:
(1) Will have a minimum of five years’ experience in corrections, parole,
probation services, or other appropriate experience as approved by
Page 7 of 21
Department of Community Supervision Misdemeanor Probation Oversight
Unit;
(2) Will be P.O.S.T. Certified as a Georgia peace officer at time of application.
Losing peace officer P.O.S.T certification while employed as a Chief
Probation Officer will result in termination of employment as Chief Probation
Officer and such person is not eligible for re-hire as Chief Probation Officer
unless they have obtained P.O.S.T. certification as a peace officer;
(3) Be at least 21 years of age at time of appointment;
(4) Will sign a DCS provided confidentiality statement agreeing to hold the
identity of offenders and records confidential;
(5) Consent to a criminal background check; and,
(6) The following persons are not eligible for employment as Chief Probation
Officer:
a. A person convicted of a felony;
b. A person with misdemeanor convictions sufficient to establish a pattern of
disregard for the law;
c. A person with a conviction, guilty plea or nolo contendere to any
misdemeanor involving moral turpitude;
d. A person with an outstanding warrant; and,
e. A person with pending charges for felony, domestic violence or
misdemeanors involving moral turpitude.
2. Criminal Records Checks
Page 8 of 21
Each employee of the Richmond County Probation Office will submit to a
criminal background check completed by the DCS in accordance with O.C.G.A. § 35-
3-34. Completed fingerprint cards will be submitted with the Probation Employee
Registration Form.
The Chief Probation Officer will notify the DCS and the Chief Judge of State
Court in writing if that officer or other employee of the probation office has been
charged, arrested, or pled guilty or nolo contendere to, or has been convicted of any
misdemeanor or any felony. Notification will be made within ten (10) business days.
3. Training and Staff Development
A. General
All employees will receive training concerning and sign a confidentiality
statement agreeing to hold the identity of offenders and records confidential. A
copy of the statement will be maintained in the employee’s personnel file. All
employees will be trained in the “Open Records Act” as found in O.C.G.A. §50-
18-70, through 50-18-77. A review of said Act will be conducted yearly and will
be documented in the employee’s file.
All employees will be trained in Part 2, of Title 42, of the Code of Federal
Regulations governing confidentiality of alcohol and drug abuse patient records.
A review of said regulation will be conducted yearly and will be documented in
the employee’s file.
B. Probation Officer Training:
Page 9 of 21
(1) Probation Officers will be required to be registered with DCS, approved by
DCS and comply with all DCS training standards as a condition of
employment; and
(2) Will complete 20 hours of annual in-service continuing education training
consisting of a curriculum approved by the DCS and/or P.O.S.T.; and
(3) All P.O.S.T. certified Probation Officers will comply with all annual P.O.S.T.
training requirements; and
(4) Training records will be maintained in the employee’s file.
(5) Probation Officers desiring to become P.O.S.T. certified as Georgia peace
officers will be provided an opportunity to do so in accordance with the
guidelines established by the Probation Advisory Board.
C. Chief Probation Officer Training:
(1) The Chief Probation Officer is subject to all of the requirements of the
Probation Officer training above except that the Chief Probation Officer will
have current P.O.S.T. Certification as a Georgia peace officer upon hire.
Probation and Related Services Provided
P.S.O agrees to provide the following misdemeanor probation services for an on behalf of
the Court:
1. Attend regularly scheduled Court sessions for the purpose of obtaining sentencing
information and personal history information for each offender placed on probation
and provide information in regard to current probation status if relevant. Dates of
regularly scheduled court sessions will be made available to P.S.O. in advance.
Page 10 of 21
2. Conduct an initial interview with each probationer at the time of his or her sentencing
or as soon thereafter as is practicable for purposes of explaining the scope of the court
order relative to fines, fees and/or restitution imposed. All requirements and
conditions of the sentence and probation supervision will be explained to the
probationer.
3. Collect from probationers, court ordered fines, restitution and other costs associated
with the order of the Court.
4. Prepare referrals and lend assistance to probationers either ordered to receive or
desiring counseling or employment assistance. Probationers identified by the Court
as having special treatment needs will be referred to appropriate community programs
and their progress followed and noted in their case record.
5. Alcohol/drug testing will be provided to probationers identified by the Court as
having drug or alcohol related problems. Unless otherwise ordered probationers will
assume the cost of regular and random drug and/or alcohol testing.
6. Provide electronic monitoring and intensive probation services to the Court and at the
direction of the Court.
7. Coordinate community service work with agencies in Richmond County and other
locations when ordered as a condition of probation by the Court appropriate and
consistent with the skills of the probationers. Community service work programs
shall include, but not be limited to, Richmond County Correctional Institution and
other work clean-up programs.
Page 11 of 21
8. Maintain information in case files for each probationer regarding compliance with the
terms and conditions of probation, reporting dates, contacts as they occur and the
amounts and dates of monies collected.
9. All reports, files, records, and papers shall be confidential and maintained as may be
required by the DCS, and shall all be available only to the Court, and to others as
specifically authorized by the Court or pursuant to O.C.G.A. §42-8-108, and
O.C.G.A. §42-8-109.2, as hereinafter may be amended.
10. The following records must be maintained for a period of two years and records must
be available and accessible for inspection by the Augusta, Georgia government, any
Judge of State or Magistrate Court, Department of Audits and Accounts or the DCS
upon request:
a. Written contracts or agreements for probation services;
b. All court orders for all probationers assigned to the entity for
supervision;
c. All accounting ledgers and related documents;
d. All payment receipts issued to probationers for all funds received;
e. All probation case history and management reports and documents;
f. All other documents pertaining to the case management of each
probationer assigned to the entity for supervision;
g. The probation entity application for registration and supporting
documents submitted to the DCS; and,
h. The registration approval issued to the probation entity by the
DCS.
Page 12 of 21
11. Provide the Clerk of Court with a monthly listing of cases for which all fines and fees
have been collected. In this manner, the Clerk will be notified as to when to remit
amounts owed to other authorities for which amounts are collected, including
restitution. Funds shall be disbursed on a monthly basis.
12. Provide to the Chief Judges of the Courts, the Board, and to the DCS a quarterly
report containing the information required by the O.C.G.A. §42-8-108, or as may be
required by the DCS. This information shall also be submitted annually to the
governing authority of Augusta, Georgia through the Augusta, Georgia Clerk of
Commission.
Other reports shall be provided in such detail as Augusta, Georgia, the Chief Judge of
State Court, Department of Audits and Accounts or the DCS may require.
To the extent required by law, all records of the probation office will be open to
inspection pursuant to the O.C.G.A. §42-8-108(b).
The DCS may produce aggregate reports summarizing statewide probation activities.
13. Reconcile all records with the Clerk’s Office on a monthly basis.
14. Assist the Court and law enforcement authorities in tracking absconders through the
submission of a report that details the probationer’s personal history and employment
information, the circumstances of his/her violation and his/her last known
whereabouts.
15. If a determination is made that the probationer is lacking the resources to be able to
make weekly or monthly payments, every effort will be made to convert the
remaining fines or costs to community service hours. Probationers will be credited a
Page 13 of 21
dollar amount determined by the Court for each one (1) hour of community service
performed and, the Court shall determine the procedure for determining eligibility.
16. All efforts will be made to deal promptly with indigent cases at the mid-point
juncture, if not earlier, in order that there will be enough time remaining on the
sentence for an appropriate disposition.
17. When the P.S.O receives confirmed notice or verifies information that a probationer
has committed a material breach in conforming to the conditions of probation, it shall
take appropriate contempt of court and/or revocation of probation action to bring the
breaches to the attention of the Court. The P.S.O. shall receive from the Court an
executed court operating procedure that outlines the timelines associated with the
reporting of probationer non-compliance.
18. Make every effort to provide consistent supervision so that each probationer generally
has only one probation officer during the term of probation.
19. No Probation Officer or employee will engage in any employment, business, or
activity that interferes or conflicts with the duties and responsibilities of this
agreement.
20. No Probation Officer or employee shall have personal or business dealings, including
the lending of money, with any probationers.
21. Provide to the Court as requested written reports on defendants on probation that
appear before the Court for arraignment, trial or other hearings.
22. In the event criminal offenses are decriminalized by the Georgia Legislature, P.S.O.
will monitor and collect fines and/or fees in such cases as may be required by the
Court.
Page 14 of 21
23. When probationers have consecutive sentences officers shall comply with the
requirements of O.C.G.A. § 42-8-103.1
24. Provide the capability to accept payments by credit card and by any other method.
Any fees or costs shall be paid by probationers.
25. Maintain on its staff a Spanish speaking employee who is appropriately qualified to
communicate with Spanish speaking probationers/offenders to ensure that these
individuals fully understand their obligations to the Court.
26. Maintain sufficient staffing levels and standards of supervision including the type and
frequency of contacts that are in compliance with the agreed upon Court operating
procedures. As determined by the Court, supervision levels will be as follows:
a. High Risk cases will be scheduled at a minimum of once a month for face to face
meetings. Probation officers will maintain an average caseload of 250 active
participants;
b. Standard cases will be scheduled at a minimum of once a month for face to face
meetings. Probation officers will maintain an average caseload of 325 active
participants;
c. Low Risk cases will be required to check-in via kiosk, telephone or mail-in on a
monthly basis and will be scheduled at a minimum of once every 90 days for a
face to face meeting. Probation officers will maintain an average caseload of 375
active participants;
d. Financial Services participants will be scheduled for payment on a monthly basis
and will not require face to face meetings unless non-compliant; and,
Page 15 of 21
e. These levels of supervision may be modified by the Court as conditions may
require.
f. The Chief Judge of State Court and the Chief Judge of Magistrate Court may, by
order, designate additional criteria to be used for assessing the appropriate
probation risk level for their court.
27. The P.S.O. shall not require probationers to continue to address probation conditions
beyond the term established in the original sentence, or for a time period beyond that
which is provided under appropriate tolling procedures.
28. Supervise participants of a Pretrial Intervention and Diversion program as requested
by the Prosecuting Attorney and approved by the Court.
29. Provide for the supervised release of pretrial defendants as ordered and directed by
the court.
30. Provide for the supervision of bond condition(s) and Temporary Protective Order
compliance as ordered and directed by the court.
31. Assist in the development, implementation and reporting for grants as appropriate.
32. Attend any and all sessions of various accountability court programs as directed and
supervise participants as directed.
33. Provide other services to the courts or county departments as permitted by law.
Service Fees
1. Each sentence shall provide for a probation or monitoring fee and technology fee
payable for each month of the probation or suspension period of the sentence. Other
fees and charges shall be charged and collected as provided in this Order. All the fees
and charges in this Order may be changed by the Probation Services Advisory Board
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or the Chief Judge of State Court at any time. Unless otherwise adjusted by the
Board or the Chief Judge of State Court, starting April 1, 2018 and continuing
annually on each April 1st, all of the fees and charges contained in this Order shall be
increased by the annual Southeast Consumer Price Index for All Urban Consumers
(CPI-U) of the previous year. In the event that the Southeast CPI-U is a negative
number, the charges and fees shall remain the same for such year. The initial fees
from the time this Order is executed through March 31, 2018 shall be as follows:
a. One dollar ($1) per month technology fee.
b. Nine dollar ($9) one-time fee for the Georgia Crime Victim Emergency Fund.
c. Thirty-two dollars ($32) per month in those cases in which the P.S.O. is collecting
fines, and surcharges ordered by the Court in a probated or suspended sentence.
The maximum fee imposed shall be as set forth in the O.C.G.A. §42-8-103.
d. Thirty-five dollars ($35) per month in those cases in which the P.S.O. is providing
probation supervision or monitoring services for conditions inclusive of victim
restitution. When all special conditions of the probated or suspended sentence,
other than payments of fines and surcharges, are completed, the supervision fee
shall then be reduced to Thirty-two dollars ($32) per month and limited as set
forth in paragraph “a”.
e. The P.S.O. may charge a one-time fifteen dollar ($15) enrollment fee to
defendants who require supervision of conditions of the Court’s sentence. The
enrollment fee may not be charged in pay only cases in which P.S.O. is only
collecting fines, and surcharges.
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f. All Pay Only cases including those with indigent probationers shall comply with
O.C.G.A § 42-8-103.
g. In cases where Restitution is ordered the collection of fees shall comply with
O.C.G.A § 17-14-8(a).
h. Probationers will pay for random drug and/or alcohol testing and the P.S.O. will
provide such testing at a rate of fifteen ($15) for initial on-site testing and twenty-
five ($25) for lab confirmations at the request of the probationer.
i. Probationers will pay for electronic monitoring services and the P.S.O. will
provide such services at a rate of six ($6), per day for house arrest, nine ($9) per
day for GPS tracking, eight ($8) per Portable Breath Alcohol test, six ($6) per day
for MEMS in-home Breath Alcohol testing, and eleven ($11), per day for
SCRAM.
j. Probationers will pay for enrollment fees for the electronic monitoring services
described in subsection (e) herein at the following rates:
i. Electronic monitoring - $25.00;
ii. GPS tracking - $40.00;
iii. MEMS in-home Breath Alcohol testing - $25.00;
iv. BART - $40.00; and
v. SCRAM - $40.00.
These enrollment fees shall be due and payable for each instance that the
electronic monitoring services are ordered by the Court.
k. The P.S.O. shall transfer each case to an unsupervised status and all probation
supervision fees shall cease when all conditions of the probated/suspended
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sentence that require supervision have been successfully completed, unless the
Court specifically orders otherwise. Pay only sentences shall be terminated upon
full payment of the amount owed by the probationer.
2. Probation and/or the monthly probation or monitoring fees may be modified,
suspended or terminated by the Court as determined necessary in the Court’s
discretion.
3. Payment of fines and fees will be set according to the sentencing order of the Court.
For those probationers requiring a payment plan due to financial inability to pay in
full, a payment plan will be set out for each probationer by the P.S.O. The P.S.O. in
establishing each payment plan will take into consideration the ability of each
probationer to pay.
4. After three months of noncompliance of the terms of probation, probation fees shall
cease, the P.S.O. shall advise the Court of said noncompliance by sworn affidavit of
the probation officer. Probation fees shall recommence at the conclusion of any rule
nisi hearing based on the Court’s ruling.
5. The P.S.O. will complete a financial assessment on those probationers reporting
financial hardships and requesting assistance. The Court will be advised of any
confirmed financial hardships and appropriate sentence modifications will be sought
including addressing probation supervision fees.
6. The P.S.O. will not collect probation supervision fees in advance and will not collect
probation fees for any months not authorized by court order.
7. Probation supervision fees will be assessed on a monthly basis. Individuals, who are
being supervised by the P.S.O. via electronic monitoring, remote alcohol testing, or
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GPS tracking, will not be charged a monthly probation supervision fee while on
monitoring. Previously paid fees will not be reimbursed to the probationer when a
conversion to community service occurs during the probated term.
8. P.S.O. fees collected from the probationer will be disbursed in accordance with
O.C.G.A § 17-14-8(a). In cases not involving restitution, funds will be distributed
first to Crime Victims Emergency Fund (“G.C.V.E.F.”), and the balance to the
Augusta, Georgia consolidated government, to be disbursed as provided by law.
9. The P.S.O. will collect the G.C.V.E.F. fee pursuant to O.C.G.A. §17-15-13, as
directed by the Court, from each probationer placed on probation as required by
Georgia law unless the Court exempts the probationer. The P.S.O. will remit all
collections on a monthly basis to the Georgia Crime Victims Compensation Board.
Department of Community Supervision
The P.S.O. must be registered and in good standing with the Department of Community
Supervision. Further, the P.S.O. must adhere to all duly promulgated rules and regulations of
said Department established by DCS per O.C.G.A. §42-8-106.
Term, Default and Agreement Termination Procedures
Richmond County Probation Office records will be open to audit by the courts and the
Augusta, Georgia Finance Department (or their designees) with appropriate written notice to
ensure compliance with state law, Augusta, Georgia policy, and the rules and regulations of the
DCS. Probation records will be open to inspection and investigation by the DCS or its
designated representatives to determine and monitor compliance with requirements. The
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probation office will diligently work to correct areas of noncompliance prior or subsequent to
their discovery by the DCS.
Augusta, Georgia understands that the DCS has the authority to impose sanctions, deny,
suspend, or revoke the registration approval of a probation entity for noncompliance with
registration requirements.
Augusta, Georgia further understands that the Chief Judge of State Court and the Chief
Judge of Magistrate Court may, by order, implement procedures consistent with the intent of this
agreement.
The said Courts of Richmond County have established the Probation Services Office,
with the approval and consent of the Augusta, Georgia Board of Commissioners, to directly
supervise participants and probationers as set forth herein as evidenced by its execution of this
agreement by its properly authorized official.
The Courts and Augusta, Georgia further agree that prior to termination or reduction of
the services contained herein, the party requesting such changes shall provide at least sixty (60)
days’ notice of the intended action. Termination or reduction of services may be addressed by
one of the following actions:
a. By Commission formal action after discussions with the Courts or
b. By Order of the Court, with approval from the governing authority.
The Courts and Augusta, Georgia further agree that, in the event there is action taken by
the Georgia legislature causing probation services to no longer be a judicial function, this
agreement shall be reconsidered by both parties within sixty (60) days of the passage of such
legislation.
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This Order shall be effective until December 31, 2021. This Agreement may be renewed
thereafter by mutual consent of the parties. This Order may be amended from time to time by
mutual consent of the parties.
Approvals
On behalf of the Courts of Richmond County:
____________________________________________
David D. Watkins, Chief Judge
State Court of Richmond County
____________________________________________
Robert W. Hunter, Judge
State Court of Richmond County
____________________________________________
Patricia W. Booker, Judge
State Court of Richmond County
____________________________________________
Kellie K. McIntyre, Judge
State Court of Richmond County
____________________________________________
William D. Jennings, III, Chief Judge
Magistrate Court of Richmond County
____________________________________________
H. Scott Allen, Presiding Judge
Magistrate Court of Richmond County
On behalf of the Augusta, Georgia Government:
_____________________________________________
The Honorable Hardie Davis, Jr., Mayor
Page 1 of 21
IN THE STATE AND MAGISTRATE COURTS OF RICHMOND COUNTY
STATE OF GEORGIA
ORDER
Pursuant to the provisions of O.C.G.A. §42-8-101, the Judges of the State and Magistrate
Courts of Richmond County, with the approval of the consolidated government of Augusta,
Georgia, the governing authority of said County, do hereby continue the established county
system to provide probation supervision, counseling, collection services for all moneys to be
paid by a defendant according to the terms of the sentence imposed on the defendant as well as
any moneys which by operation of law are to be paid by the defendant in consequence of the
conviction, and other probation services for persons convicted in these courts and placed on
probation in Richmond County. These services of supervision, counseling and collection are to
be administered through a Probation Services Office (hereinafter “P.S.O.”) which is a division of
the Richmond County State Court.
The P.S.O. shall have probation and supervisory jurisdiction of all misdemeanor offenses
authorized by statute. The P.S.O. shall be authorized to provide any other such services as
deemed appropriate and as ordered by said Courts.
The P.S.O. of said Richmond County Courts is hereby authorized to collect a monthly
probation supervision fee of an amount set by the P.S.O. not to exceed the maximum amount
allowed by law, to be paid into the general funds of Augusta, Georgia, if such fee is authorized
by the sentencing judge and is contained in the sentencing order.
The P.S.O. is authorized by this Order to proceed with the supervision and enforcement
of any provisions of a defendant’s sentence by order of the courts, including the supervision and
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enforcement of a probated or suspended sentence, and to do any and all acts necessary and
proper to carry into effect the orders of these courts.
Richmond County Probation Services Advisory Board
There is hereby created the Richmond County Probation Services Board (hereinafter
“Board”). The Board shall be comprised of the Chief Judge of State Court, the Chief Judge of
Magistrate Court, the Augusta, Georgia Administrator and the Chair of the Public Safety
Committee. In the absence of said Judges, each court may, during said absence, substitute that
representative with another judge; and, any judge of said Courts may participate in discussions.
The Commission member’s term of service as a member of the Board will run concurrent with
the position as Chair of the Public Safety Committee. The Board shall have the following duties:
1. Prescribe the knowledge, skills and abilities required for Chief Probation Officer;
2. Recommend comments on the performance appraisal of the Chief Probation Officer
to the Chief Judge of State Court;
3. Approve the default supervision fee amount when such amount is not stated by the
sentencing court;
4. Review and approve standard operating procedures including supervision and other
procedures and make recommendations, including any changes, in that regard;
5. Review regular reports, such as those summarizing rates of compliance, fines and fee
collection, community service, and attendance at court-ordered programs; and
6. Consider and review requests from the Augusta, Georgia Board of Commissioners
regarding modifications to the probation services program or this Order.
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Chief Probation Officer and Probation Officers
There is hereby created position of Chief Probation Officer, as authorized and approved
by the governing authority of said county. The Chief Probation Officer shall be appointed by a
hiring panel and shall serve at the pleasure of the Chief Judge of State Court. The hiring panel
for the Chief Probation Officer shall consist of the Augusta, Georgia Administrator, the Augusta,
Georgia Human Resources Director, the Court Administrator of the State Court, and at least one
(1) outside consultant with probation expertise as agreed by the Chief Judge of the State Court
and the Augusta, Georgia Administrator. The Chief Probation Officer shall report directly to the
Chief Judge of State Court and as needed through his/her designee and shall serve at the will of
the Chief Judge of State Court. The Chief Probation Officer shall hire all Probation Officers,
Probation Office Supervisors and all support staff and such employees shall serve at the will of
the Chief Probation Officer. The Chief Probation Officer and other Probation Officers shall have
such duties, responsibilities, and authority as a probation officer under existing Georgia law,
except as may be inconsistent with this Order, the Official Code of Georgia Annotated, or except
as may be specifically modified from time-to-time, in writing by the Board. The Chief Judge of
State Court, in coordination with the Board and the Augusta, Georgia Human Resources
Department, shall establish a job description for the Chief Probation Officer, and other Probation
Officers and staff, which job description shall set out in such detail as deemed appropriate, the
duties, responsibilities, and authority of the Chief Probation Officer and Probation Officers and
staff.
Chief Probation Officer, Probation Officers and Staff
Officers and employees of the P.S.O. will at all times observe and comply with all laws,
ordinances, and regulations of the federal, state, and local governments which may in any
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manner affect the performance of this Agreement. Officers and employees of the P.S.O. shall
comply with the O.C.G.A. §42-8-101, et seq., as well as all standards and qualifications as set
forth by the DCS and/or P.O.S.T. and/or this Order and/or the Chief Judge of State Court, and
shall comply with any rules and regulations promulgated by the DCS Board, and/or P.O.S.T.
and/or the Chief Judge of State Court to include any amendments as may be made from time to
time. The standards and qualifications for officers and employees of the P.S.O. shall include:
1. Richmond County Probation Employee Requirements:
A. Administrative/Support Staff:
(1) Will be at least 18 years of age;
(2) Will receive training concerning and sign a confidentiality statement agreeing
to hold the identity of offenders and records confidential. A copy of the
statement will be maintained in the employee’s personnel file;
(3) Will sign a statement cosigned by the Chief Probation Officer that the
employee has received an orientation on the rules of the Department of
Community Supervision, (hereinafter “DCS”), as well as operations
guidelines relevant to that employee’s job duties. A copy of the statement will
be maintained in the employee’s personnel file; and,
(4) Consent to a criminal background check; and,
(5) All hires for administrative staff shall have the educational requirements
provided in DCS Board Rule 105-2-.09
(6) The following persons are not eligible for employment as an administrative or
support staff person:
a. A person convicted of a felony;
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b. A person with misdemeanor convictions sufficient to establish a pattern of
disregard for the law;
c. A person with a conviction, guilty plea or nolo contendere to any
misdemeanor involving moral turpitude;
d. A person with an outstanding warrant; and,
e. A person with pending charges for felony, domestic violence or
misdemeanors involving moral turpitude.
f. All training shall comply with DSC Board Rules 105-22-.09 and 105-2.12
B. Probation Officer Standards:
(1) Will be at least 21 years of age at time of appointment;
(2) Will be eligible to serve as a Probation Officer as defined in O.C.G.A. §42-8-
100, will be registered with DCS, approved by DCS and be in compliance
with all DCS training standards or have proof of successful completion of the
P.O.S.T. basic course of training for supervision of probationers and parolees,
or P.O.S.T. Certified as a peace officer. A Probation Officer terminated for
failure to maintain the ability to serve as a Probation officer is not eligible for
re-hire until they have obtained such designation.
(3) Will have completed a standard two-year college course of study (90 quarter
hours/60 semester hours) or have four years law enforcement experience at
the time of appointment;
(4) Documentation of education, law enforcement experience, P.O.S.T.
certification, and authorization to serve as a Probation officer pursuant to
O.C.G.A. §42-8-100 shall be maintained in the employee’s personnel file;
Page 6 of 21
(5) Will sign a statement cosigned by the Chief Probation Officer that the
employee has received an orientation on the rules of the DCS as well as
operations guidelines relevant to that employee’s job duties. A copy of the
statement will be maintained in the employee’s personnel file;
(6) Will receive training in and sign a confidentiality statement agreeing to hold
the identity of offenders and records confidential. A copy of the statement
will be maintained in the employee’s personnel file; and,
(7) Consent to a criminal background check; and,
(8) The following persons are not eligible for employment as a Probation Officer:
a. A person convicted of a felony;
b. A person with misdemeanor convictions sufficient to establish a pattern of
disregard for the law;
c. A person with a conviction, guilty plea or nolo contendere to any
misdemeanor involving moral turpitude;
d. A person with an outstanding warrant; and,
e. A person with pending charges for felony, domestic violence or
misdemeanors involving moral turpitude.
(9) Supervising Probation Officers: Probation Officers in positions where they
supervise other probation officers must be P.O.S.T. Certified as a Georgia
peace officer.
C. Chief Probation Officer:
(1) Will have a minimum of five years’ experience in corrections, parole, or
probation services, or other appropriate experience as approved by
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Department of Community Supervision Misdemeanor Probation Oversight
Unit;
(2) Will be P.O.S.T. Certified as a Georgia peace officer at time of application.
Losing peace officer P.O.S.T certification while employed as a Chief
Probation Officer will result in termination of employment as Chief Probation
Officer and such person is not eligible for re-hire as Chief Probation Officer
unless they have obtained P.O.S.T. certification as a peace officer;
(3) Be at least 21 years of age at time of appointment;
(4) Will sign a DCS provided confidentiality statement agreeing to hold the
identity of offenders and records confidential;
(5) Consent to a criminal background check; and,
(6) The following persons are not eligible for employment as Chief Probation
Officer:
a. A person convicted of a felony;
b. A person with misdemeanor convictions sufficient to establish a pattern of
disregard for the law;
c. A person with a conviction, guilty plea or nolo contendere to any
misdemeanor involving moral turpitude;
d. A person with an outstanding warrant; and,
e. A person with pending charges for felony, domestic violence or
misdemeanors involving moral turpitude.
2. Criminal Records Checks
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Each employee of the Richmond County Probation Office will submit to a
criminal background check completed by the DCS in accordance with O.C.G.A. § 35-
3-34. Completed fingerprint cards will be submitted with the Probation Employee
Registration Form.
The Chief Probation Officer will notify the DCS and the Chief Judge of State
Court in writing if that officer or other employee of the probation office has been
charged, arrested, or pled guilty or nolo contendere to, or has been convicted of any
misdemeanor or any felony. Notification will be made within ten (10) business days.
3. Training and Staff Development
A. General
All employees will receive training concerning and sign a confidentiality
statement agreeing to hold the identity of offenders and records confidential. A
copy of the statement will be maintained in the employee’s personnel file. All
employees will be trained in the “Open Records Act” as found in O.C.G.A. §50-
18-70, through 50-18-77. A review of said Act will be conducted yearly and will
be documented in the employee’s file.
All employees will be trained in Part 2, of Title 42, of the Code of Federal
Regulations governing confidentiality of alcohol and drug abuse patient records.
A review of said regulation will be conducted yearly and will be documented in
the employee’s file.
B. Probation Officer Training:
Page 9 of 21
(1) Probation Officers will be required to be registered with DCS, approved by
DCS and comply with all DCS training standards as a condition of
employment; and
(2) Will complete 20 hours of annual in-service continuing education training
consisting of a curriculum approved by the DCS and/or P.O.S.T.; and
(3) All P.O.S.T. certified Probation Officers will comply with all annual P.O.S.T.
training requirements; and
(4) Training records will be maintained in the employee’s file.
(5) Probation Officers desiring to become P.O.S.T. certified as Georgia peace
officers will be provided an opportunity to do so in accordance with the
guidelines established by the Probation Advisory Board.
C. Chief Probation Officer Training:
(1) The Chief Probation Officer is subject to all of the requirements of the
Probation Officer training above except that the Chief Probation Officer will
have current P.O.S.T. Certification as a Georgia peace officer upon hire.
Probation and Related Services Provided
P.S.O agrees to provide the following misdemeanor probation services for an on behalf of
the Court:
1. Attend regularly scheduled Court sessions for the purpose of obtaining sentencing
information and personal history information for each offender placed on probation
and provide information in regard to current probation status if relevant. Dates of
regularly scheduled court sessions will be made available to P.S.O. in advance.
Page 10 of 21
2. Conduct an initial interview with each probationer at the time of his or her sentencing
or as soon thereafter as is practicable for purposes of explaining the scope of the court
order relative to fines, fees and/or restitution imposed. All requirements and
conditions of the sentence and probation supervision will be explained to the
probationer.
3. Collect from probationers, court ordered fines, restitution and other costs associated
with the order of the Court.
4. Prepare referrals and lend assistance to probationers either ordered to receive or
desiring counseling or employment assistance. Probationers identified by the Court
as having special treatment needs will be referred to appropriate community programs
and their progress followed and noted in their case record.
5. Alcohol/drug testing will be provided to probationers identified by the Court as
having drug or alcohol related problems. Unless otherwise ordered probationers will
assume the cost of regular and random drug and/or alcohol testing.
6. Provide electronic monitoring and intensive probation services to the Court and at the
direction of the Court.
7. Coordinate community service work with agencies in Richmond County and other
locations when ordered as a condition of probation by the Court appropriate and
consistent with the skills of the probationers. Community service work programs
shall include, but not be limited to, Richmond County Correctional Institution and
other work clean-up programs.
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8. Maintain information in case files for each probationer regarding compliance with the
terms and conditions of probation, reporting dates, contacts as they occur and the
amounts and dates of monies collected.
9. All reports, files, records, and papers shall be confidential and maintained as may be
required by the DCS, and shall all be available only to the Court, and to others as
specifically authorized by the Court or pursuant to O.C.G.A. §42-8-108, and
O.C.G.A. §42-8-109.2, as hereinafter may be amended.
10. The following records must be maintained for a period of two years and records must
be available and accessible for inspection by the Augusta, Georgia government, any
Judge of State or Magistrate Court, Department of Audits and Accounts or the DCS
upon request:
a. Written contracts or agreements for probation services;
b. All court orders for all probationers assigned to the entity for
supervision;
c. All accounting ledgers and related documents;
d. All payment receipts issued to probationers for all funds received;
e. All probation case history and management reports and documents;
f. All other documents pertaining to the case management of each
probationer assigned to the entity for supervision;
g. The probation entity application for registration and supporting
documents submitted to the DCS; and,
h. The registration approval issued to the probation entity by the
DCS.
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11. Provide the Clerk of Court with a monthly listing of cases for which all fines and fees
have been collected. In this manner, the Clerk will be notified as to when to remit
amounts owed to other authorities for which amounts are collected, including
restitution. Funds shall be disbursed on a monthly basis.
12. Provide to the Chief Judges of the Courts, the Board, and to the DCS a quarterly
report containing the information required by the O.C.G.A. §42-8-108, or as may be
required by the DCS. This information shall also be submitted annually to the
governing authority of Augusta, Georgia through the Augusta, Georgia Clerk of
Commission.
Other reports shall be provided in such detail as Augusta, Georgia, the Chief Judge of
State Court, Department of Audits and Accounts or the DCS may require.
To the extent required by law, all records of the probation office will be open to
inspection pursuant to the O.C.G.A. §42-8-108(b).
The DCS may produce aggregate reports summarizing statewide probation activities.
13. Reconcile all records with the Clerk’s Office on a monthly basis.
14. Assist the Court and law enforcement authorities in tracking absconders through the
submission of a report that details the probationer’s personal history and employment
information, the circumstances of his/her violation and his/her last known
whereabouts.
15. If a determination is made that the probationer is lacking the resources to be able to
make weekly or monthly payments, every effort will be made to convert the
remaining fines or costs to community service hours. Probationers will be credited a
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dollar amount determined by the Court for each one (1) hour of community service
performed and, the Court shall determine the procedure for determining eligibility.
16. All efforts will be made to deal promptly with indigent cases at the mid-point
juncture, if not earlier, in order that there will be enough time remaining on the
sentence for an appropriate disposition.
17. When the P.S.O receives confirmed notice or verifies information that a probationer
has committed a material breach in conforming to the conditions of probation, it shall
take appropriate contempt of court and/or revocation of probation action to bring the
breaches to the attention of the Court. The P.S.O. shall receive from the Court an
executed court operating procedure that outlines the timelines associated with the
reporting of probationer non-compliance.
18. Make every effort to provide consistent supervision so that each probationer generally
has only one probation officer during the term of probation.
19. No Probation Officer or employee will engage in any employment, business, or
activity that interferes or conflicts with the duties and responsibilities of this
agreement.
20. No Probation Officer or employee shall have personal or business dealings, including
the lending of money, with any probationers.
21. Provide to the Court as requested written reports on defendants on probation that
appear before the Court for arraignment, trial or other hearings.
22. In the event criminal offenses are decriminalized by the Georgia Legislature, P.S.O.
will monitor and collect fines and/or fees in such cases as may be required by the
Court.
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23. When probationers have consecutive sentences officers shall comply with the
requirements of O.C.G.A. § 42-8-103.1
24. Provide the capability to accept payments by credit card and by any other method.
Any fees or costs shall be paid by probationers.
25. Maintain on its staff a Spanish speaking employee who is appropriately qualified to
communicate with Spanish speaking probationers/offenders to ensure that these
individuals fully understand their obligations to the Court.
26. Maintain sufficient staffing levels and standards of supervision including the type and
frequency of contacts that are in compliance with the agreed upon Court operating
procedures. As determined by the Court, supervision levels will be as follows:
a. High Risk cases will be scheduled at a minimum of once a month for face to face
meetings. Probation officers will maintain an average caseload of 250 active
participants;
b. Standard cases will be scheduled at a minimum of once a month for face to face
meetings. Probation officers will maintain an average caseload of 325 active
participants;
c. Low Risk cases will be required to check-in via kiosk, telephone or mail-in on a
monthly basis and will be scheduled at a minimum of once every 90 days for a
face to face meeting. Probation officers will maintain an average caseload of 375
active participants;
d. Financial Services participants will be scheduled for payment on a monthly basis
and will not require face to face meetings unless non-compliant; and,
Page 15 of 21
e. These levels of supervision may be modified by the Court as conditions may
require.
f. The Chief Judge of State Court and the Chief Judge of Magistrate Court may, by
order, designate additional criteria to be used for assessing the appropriate
probation risk level for their court.
27. The P.S.O. shall not require probationers to continue to address probation conditions
beyond the term established in the original sentence, or for a time period beyond that
which is provided under appropriate tolling procedures.
28. Supervise participants of a Pretrial Intervention and Diversion program as requested
by the Prosecuting Attorney and approved by the Court.
29. Provide for the supervised release of pretrial defendants as ordered and directed by
the court.
30. Provide for the supervision of bond condition(s) and Temporary Protective Order
compliance as ordered and directed by the court.
31. Assist in the development, implementation and reporting for grants as appropriate.
32. Attend any and all sessions of various accountability court programs as directed and
supervise participants as directed.
33. Provide other services to the courts or county departments as permitted by law.
Service Fees
1. Each sentence shall provide for a probation or monitoring fee and technology fee
payable for each month of the probation or suspension period of the sentence. Other
fees and charges shall be charged and collected as provided in this Order. All the fees
and charges in this Order may be changed by the Probation Services Advisory Board
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or the Chief Judge of State Court at any time. Unless otherwise adjusted by the
Board or the Chief Judge of State Court, starting April 1, 2018 and continuing
annually on each April 1st, all of the fees and charges contained in this Order shall be
increased by the annual Southeast Consumer Price Index for All Urban Consumers
(CPI-U) of the previous year. In the event that the Southeast CPI-U is a negative
number, the charges and fees shall remain the same for such year. The initial fees
from the time this Order is executed through March 31, 2018 shall be as follows:
a. One dollar ($1) per month technology fee.
b. Nine dollar ($9) one-time fee for the Georgia Crime Victim Emergency Fund.
c. Thirty-two dollars ($32) per month in those cases in which the P.S.O. is collecting
fines, and surcharges ordered by the Court in a probated or suspended sentence.
The maximum fee imposed shall be as set forth in the O.C.G.A. §42-8-103.
d. Thirty-five dollars ($35) per month in those cases in which the P.S.O. is providing
probation supervision or monitoring services for conditions inclusive of victim
restitution. When all special conditions of the probated or suspended sentence,
other than payments of fines and surcharges, are completed, the supervision fee
shall then be reduced to Thirty-two dollars ($32) per month and limited as set
forth in paragraph “a”.
e. The P.S.O. may charge a one-time fifteen dollar ($15) enrollment fee to
defendants who require supervision of conditions of the Court’s sentence. The
enrollment fee may not be charged in pay only cases in which P.S.O. is only
collecting fines, and surcharges.
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f. All Pay Only cases including those with indigent probationers shall comply with
O.C.G.A § 42-8-103.
g. In cases where Restitution is ordered the collection of fees shall comply with
O.C.G.A § 17-14-8(a).
h. Probationers will pay for random drug and/or alcohol testing and the P.S.O. will
provide such testing at a rate of fifteen ($15) for initial on-site testing and twenty-
five ($25) for lab confirmations at the request of the probationer.
i. Probationers will pay for electronic monitoring services and the P.S.O. will
provide such services at a rate of six ($6), per day for house arrest, nine ($9) per
day for GPS tracking, eight ($8) per Portable Breath Alcohol test, six ($6) per day
for MEMS in-home Breath Alcohol testing, and eleven ($11), per day for
SCRAM.
j. Probationers will pay for enrollment fees for the electronic monitoring services
described in subsection (e) herein at the following rates:
i. Electronic monitoring - $25.00;
ii. GPS tracking - $40.00;
iii. MEMS in-home Breath Alcohol testing - $25.00;
iv. BART - $40.00; and
v. SCRAM - $40.00.
These enrollment fees shall be due and payable for each instance that the
electronic monitoring services are ordered by the Court.
k. The P.S.O. shall transfer each case to an unsupervised status and all probation
supervision fees shall cease when all conditions of the probated/suspended
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sentence that require supervision have been successfully completed, unless the
Court specifically orders otherwise. Pay only sentences shall be terminated upon
full payment of the amount owed by the probationer.
2. Probation and/or the monthly probation or monitoring fees may be modified,
suspended or terminated by the Court as determined necessary in the Court’s
discretion.
3. Payment of fines and fees will be set according to the sentencing order of the Court.
For those probationers requiring a payment plan due to financial inability to pay in
full, a payment plan will be set out for each probationer by the P.S.O. The P.S.O. in
establishing each payment plan will take into consideration the ability of each
probationer to pay.
4. After three months of noncompliance of the terms of probation, probation fees shall
cease, the P.S.O. shall advise the Court of said noncompliance by sworn affidavit of
the probation officer. Probation fees shall recommence at the conclusion of any rule
nisi hearing based on the Court’s ruling.
5. The P.S.O. will complete a financial assessment on those probationers reporting
financial hardships and requesting assistance. The Court will be advised of any
confirmed financial hardships and appropriate sentence modifications will be sought
including addressing probation supervision fees.
6. The P.S.O. will not collect probation supervision fees in advance and will not collect
probation fees for any months not authorized by court order.
7. Probation supervision fees will be assessed on a monthly basis. Individuals, who are
being supervised by the P.S.O. via electronic monitoring, remote alcohol testing, or
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GPS tracking, will not be charged a monthly probation supervision fee while on
monitoring. Previously paid fees will not be reimbursed to the probationer when a
conversion to community service occurs during the probated term.
8. P.S.O. fees collected from the probationer will be disbursed in accordance with
O.C.G.A § 17-14-8(a). In cases not involving restitution, funds will be distributed
first to Crime Victims Emergency Fund (“G.C.V.E.F.”), and the balance to the
Augusta, Georgia consolidated government, to be disbursed as provided by law.
9. The P.S.O. will collect the G.C.V.E.F. fee pursuant to O.C.G.A. §17-15-13, as
directed by the Court, from each probationer placed on probation as required by
Georgia law unless the Court exempts the probationer. The P.S.O. will remit all
collections on a monthly basis to the Georgia Crime Victims Compensation Board.
Department of Community Supervision
The P.S.O. must be registered and in good standing with the Department of Community
Supervision. Further, the P.S.O. must adhere to all duly promulgated rules and regulations of
said Department established by DCS per O.C.G.A. §42-8-106.
Term, Default and Agreement Termination Procedures
Richmond County Probation Office records will be open to audit by the courts and the
Augusta, Georgia Finance Department (or their designees) with appropriate written notice to
ensure compliance with state law, Augusta, Georgia policy, and the rules and regulations of the
DCS. Probation records will be open to inspection and investigation by the DCS or its
designated representatives to determine and monitor compliance with requirements. The
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probation office will diligently work to correct areas of noncompliance prior or subsequent to
their discovery by the DCS.
Augusta, Georgia understands that the DCS has the authority to impose sanctions, deny,
suspend, or revoke the registration approval of a probation entity for noncompliance with
registration requirements.
Augusta, Georgia further understands that the Chief Judge of State Court and the Chief
Judge of Magistrate Court may, by order, implement procedures consistent with the intent of this
agreement.
The said Courts of Richmond County have established the Probation Services Office,
with the approval and consent of the Augusta, Georgia Board of Commissioners, to directly
supervise participants and probationers as set forth herein as evidenced by its execution of this
agreement by its properly authorized official.
The Courts and Augusta, Georgia further agree that prior to termination or reduction of
the services contained herein, the party requesting such changes shall provide at least sixty (60)
days’ notice of the intended action. Termination or reduction of services may be addressed by
one of the following actions:
a. By Commission formal action after discussions with the Courts or
b. By Order of the Court, with approval from the governing authority.
The Courts and Augusta, Georgia further agree that, in the event there is action taken by
the Georgia legislature causing probation services to no longer be a judicial function, this
agreement shall be reconsidered by both parties within sixty (60) days of the passage of such
legislation.
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This Order shall be effective until December 31, 2021. This Agreement may be renewed
thereafter by mutual consent of the parties. This Order may be amended from time to time by
mutual consent of the parties.
Approvals
On behalf of the Courts of Richmond County:
____________________________________________
David D. Watkins, Chief Judge
State Court of Richmond County
____________________________________________
Robert W. Hunter, Judge
State Court of Richmond County
____________________________________________
Patricia W. Booker, Judge
State Court of Richmond County
____________________________________________
Kellie K. McIntyre, Judge
State Court of Richmond County
____________________________________________
William D. Jennings, III, Chief Judge
Magistrate Court of Richmond County
____________________________________________
H. Scott Allen, Presiding Judge
Magistrate Court of Richmond County
On behalf of the Augusta, Georgia Government:
_____________________________________________
The Honorable Hardie Davis, Jr., Mayor
Administrative Services Committee Meeting
2/13/2018 1:15 PM
Motion to approve Amendment to Probation Services Order
Department:Probation Department
Presenter:Probation
Caption:Motion to approve amendment to Probation Services Order to
adjust the experience categories for the Chief Probation Officer.
Background:Page 6 of the Probation Service Order describes the experience
requirement for the Chief Probation Officer of the Richmond
County Probation Office. The current language reads as follows:
"A. Chief Probation Officer: Will have a minimum of five
years’ experience in corrections, parole or probation services;"
The Department of Community Supervision (DCS) contains
regulations allowing for the Chief Probation Officer to have other
appropriate experience provided such experience is approved by
the DCS Misdemeanor Probation Oversight Unit. The current
language of the Probation Order does not contain the "other
appropriate experience" category.
Analysis:To ensure consistency with the DCS regulations, the probation
Advisory Board would like to amend the Probation Order so that
it reads as follows: "Chief Probation Officer: (1) Will have a
minimum of five years’ experience in corrections, parole,
probation services, or other appropriate experience as approved by
Department of Community Supervision Misdemeanor Probation
Oversight Unit;"
Financial Impact:None.
Alternatives:Not approve amendments to the Probation Order at this time.
Recommendation:Approve.
Funds are Available
in the Following
Accounts:
N/A.
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Clerk of Commission
Administrative Services Committee Meeting
2/13/2018 1:15 PM
Staff Attorneys
Department:
Presenter:Commissioner Marion Williams
Caption:Approve a remedy/solution regarding pay differentials between
staff attorneys assigned to certain city departments (Requested
by Commissioner Marion Williams)
Background:
Analysis:
Financial Impact:
Alternatives:
Recommendation:
Funds are Available
in the Following
Accounts:
REVIEWED AND APPROVED BY: