d b e
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Current Issues
Facing the USDOT DBE Program By Colette D. Holt, Esq, regular contributor
T
he United States Department of Transportation’s (USDOT) Disadvantaged Business Enterprise (DBE) Program was enacted in response to the welldocumented history of race and sex discrimination in the market for USDOT-assisted contracts. The program regulations at 49 C.F.R. Part 26 for Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) and 49 C.F.R. Part 23 for Federal Aviation Administration (FAA) contracts are designed to ensure that small firms owned by socially and economically disadvantaged individuals have full and fair opportunities to compete for FHWA-, FTA- and FAAassisted contracts. Revisions to the regulations since 1999, have codified
the legal standards governing raceand gender-conscious programs and provided best practices so that the program achieves its objectives without unduly burdening nonDBEs. The result has been that Part 26 has been repeatedly and unanimously upheld by the federal courts. Three key challenges remain for the program in 2019: uniformity of practice; program resource allocation and oversight; and counting DBE utilization toward contract goals.
Uniformity of Practice Since the DBE Program is national in scope, it encourages uniformity of practice. However, certain factors work against this objective.
Recipients have substantial discretion in structuring their programs. Despite the availability of DOT sample templates and guidance, as well as training available through a variety of channels, the end result is programs that differ markedly from one another. Differences range from how trucking firm dollars are counted, to exclusion of entire industries from contract goals (for example consulting contracts) to (questionable) disparity study results that lead to certain racial/ ethnic groups or white females being dropped for goal credit. This is a source of frustration to firms working or even seeking to work in multiple jurisdictions. Further, distrust between recipients concerning DBE certification and Winter 2019 //
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