Opening DOORS Program

Indianapolis, INSeptember 25, 2012

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Second NPRM on DBE

• Sent to Federal Register August 22nd

• Published September 6, 2012

• Comment period ends

November 5, 2012.Docket number-OST-2012-0147Http://www.regulations.gov

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Highlights • New forms• Definitions• DBE program requirements (who must

have one)• Goal setting• TVMs• Good faith efforts• Counting DBE participation• Certification—not covered during this

session!

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New Forms

• Revised application form (removes old SBA-DOT MOU language)

• Revised semi-annual report:– Track on-going payments– Track women, minority women,

minorities

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Definitions

• Eight new definitions:– Assets– Business, business concern or business

enterprise– Contingent liability– Days– Immediate family member– Liabilities– Non-disadvantaged individual– Principal place of business– Transit Vehicle Manufacturer

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DBE Program• Makes clear that recipient must have

a DBE program if it receives $250K in planning, capital, or operating assistance in a fiscal year.

• Cannot exclude prime contracts below $250K from the threshold

• Proposes to not allow sub-recipients to have their own program—must operate under the direct recipient’s DBE program

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Goal Setting• Would allow use of bidders’ list to

determine relative availability of DBEs, but only if well documented and supported.

• Proposes to disallow use of pre-qualified contractors list to establish availability.

• Proposes to not allow step two adjustments-especially a downward adjust of the availability—unless it is clearly warranted.

• Makes clear that FTA, FHWA or FAA can adjust an improperly determined goal.

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Goal Setting Cont.

• Proposes to allow goals for entire project or just the Federal share.

• Proposes to eliminate the public comment period and allow publication on website only.

• Proposes to require stronger consultation efforts before setting goal.

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TVMs

• Proposes to prohibit TVMS from selectively determining which contracting opportunities are available to DBEs

• Proposes to prohibit transit agencies from issuing overly proscriptive vehicle procurements, which diminishes competition in violation of 49 U.S.C. 5325(h)

• Proposes to prohibit using entire federal share as base figure for DBE goal

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TVMs cont.

• Proposes to require reporting even when there is no activity

• Proposes to make clear that post-award DBE requirements need not be followed when or reported in those years where TVM has not been awarded a contract or is not performing on a contract.

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Good Faith Efforts

• Proposes to remove “responsive/responsible” language.

• Proposes to have Bidders submit all DBE info at time of bid (except in negotiated procurements)

• Proposes to require copies of DBE and non-DBE quotes received when non-DBE was chosen over DBE because of price

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Good Faith Efforts cont.

• Proposes to options for when GFE documents have to be submitted:– At time of original bid– One day after winning the bidA promise by a prime contractor bidder to include DBEs after the award is not evidence of GFE

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Good Faith Efforts Cont.• Proposes new contract clause that work

committed by prime to specific DBE must be performed by that DBE (unless the recipient approves)--or prime cannot be paid for that work

• Proposes a clear process for replacing a DBE during contract performance

• Proposes new contract clause that failure to comply with DBE regulations is a material breach of the contract, resulting in various sanctions

• Proposes to require prime contractor to provide all subcontracts for all DBEs at all levels.

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Good Faith Efforts Cont.

• Proposes to strengthen requirements of recipients when evaluating good faith efforts of contractor failing to meet goal

• Review other bids to determine if higher bids met the goal

• Review and compare bids of DBE and non-DBE when non-DBE was chosen due to price

• No objective checklists

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Counting DBE Participation

• Proposes to allow DBEs to lease trucks from non-DBE leasing firm without any loss of credit.

• Counting must be done on a case-by-case basis—regardless of certification

• Asks for comment regarding “regular dealer” concept. Is a DBE regular dealer just a “middleman”?

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Certification Highlights

• Gross Receipts Cap from $22.41 to $23.98M –inflationary adjustment

• Ownership• Control• Prequalification• Certification decisions• Denials of initial requests for certification• Removal of eligibility• Suspension of certification

Federal Transit Administration

www.fta.dot.gov