Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
C2010-242 - 6/29/2010 - Approved
~ j °P. ~ - MEMORANDUM OF UNDERSTANDING REGARDING THE ADOPTION OF THE TEXAS DEPARTMENT OF TRANSPORTATION'S FEDERALLY-APPROVED DISADVANTAGED BUSINESS ENTERPRISE PROGRAM BY THE CITY OF CORPUS CHRISTI TxDOT This Memorandum of Understanding is by and between the TEXAS DEPARTMENT OF TRANSPORTATION ("TxDOT"), an agency of the State of Texas; and the CITY OF CORPUS CHRISTI ("CITY"),apolitical subdivision of the State of Texas. Whereas, from time to time CITY receives federal funds from the Federal Highway Administration ("FHWA") through TxDOT to assist CITY with the construction and design of projects partially or wholly funded through FHWA; Whereas, CITY, as asub-recipient of federal funds, is required by 49 CFR 26, to implement a program for disadvantaged business enterprises ("DBEs"), as defined by 49 CFR Z6 ("DBE Program"}; Whereas, TxDOT has implemented a Disadvantaged Business Enterprise Program (DBE Program} that is approved by the FHWA pursuant to 49 CFR part 26; Whereas, certain aspects of CITY'S procurement of construction and design services are subject to review and/ar concurrence by TxDOT as a condition of receiving federal funds from FHWA through TxDOT; Whereas, CITY and TxDOT undertake substantially similar roadway construction projects and design projects and construct and design their respective projects using substantially the same pool of contractors; Whereas, CITY- desires to implement a federally compliant DBE Program by adopting the TxDOT approved program, as recommended by FHWA; Whereas, TxDOT and CITY find it appropriate to enter into this Memorandum of Understanding to memorialize the obligations, expectations and rights each has as related to CITY'S adoption of the TxDOT DBE Program to meet the federal requirements; Now, therefore, TxDOT and C1TY, in consideration of the mutual promises, covenants and conditions made herein, agree to and acknowledge the following: {]} TxDOT has developed a DBE Program and annually establishes a DBE goal far Texas that is federally approved and compliant with 49 CFR 26 and other applicable laws and regulations. (2) CITY is asub-recipient of federal assistance for construction projects and design projects and, in accordance with 49 CFR § 26.21, must comply with a federally approved DBE Program. The CITY receives its federal assistance through TxDOT. As asub-recipient, CITY has the option of developing its own program or adopting and operating under TxDOT's federally approved DBE Program. The FHWA recommends that sub-recipients, such as CITY, adopt the DBE program, administered through TxDOT, and CITY by its prescribed protocol adopted the TxDOT DBE Program on Tuesday, June 29, 2010 at the City Council Meeting of the Corpus Christi Ciry Council. (3) This Memorandum of Understanding evidences FHWA's and TxDOT's consent to the adoption of the TxDOT DBE Program by CITY to achieve its DBE participation in federally-assisted Construction and 2010-242 Res. 028663 06/29/10 Page 1 of 6 lN~EX~D ~, ~. ~ ~ ~ ~ f {4) The parties will work together in good, faith to assure effective and efficient implementation of the DBE Program for CITY and for TxDOT. (5) CITY and TxDOT have agreed upon the following delegation of responsibilities and obligations in the administration of the DBE Program adopted by CITY: (a) CITY will be responsible for project monitoring and data reporting to TxDOT. CITY will furnish to TxDOT any required DBE contractor compliance reports, documents or other information as may be required from time to time to comply with federal regulations. TxDOT will provide the necessary and appropriate reporting forms, to CITY. (b) CITY will recommend contract-specific DBE goals consistent with TxDOT's DBE guidelines and in consideration of the local market, project size, and nature of the goods} or service{s) to be acquired. CITY'S recommendation may be that no DBE goals are set on any particular project or portion of a project or that proposed DBE goals be modified. CITY and TxDOT will work together to achieve a mutually acceptable goal, however, TxDOT will retain final decision-making authority regarding DBE goals. (c) TxDOT will cooperate with CITY in an effort to meet the timing and other requirements of CITY projects. (d) CITY will be solely responsible for the solicitation and structuring of bids and bid documents to procure goods and services for its projects that use federal funds and will be responsible for all costs and expenses incurred in its procurements. (e) The DBEs eligible to participate on TxDOT construction projects or design projects also will be eligible to participate on CITY construction projects or design projects subject to the DBE Program. The DBEs will be listed on TxDOT's website under the Texas Unified Certification Program {TUCP}. (f) CITY will conduct reviews and provide reports with recommendations to TxDOT concerning any DBE Program compliance issues that may arise due to project specific requirements such as Good Faith Effort (GFE}, Commercially Useful Function (CUF), etc. CITY and TxDOT will work together to achieve a mutually acceptable goal, however, TxDOT will retain final decision- making authority on those issues and reserves the right to perform compliance reviews. CITY shall provide TxDOT with a listing of sanctions that will be assessed against contractors for violation of federal DBE regulations and its procedures for investigation of violations and assessment of sanctions for documented violations. CITY will require contractors for its FHWA federally assisted projects to use the attached forms as follows: Attachment 1 -Disadvantaged Business Enterprise (DBE} Programs Commitment Agreement Form SMS 4901 Attachment 2 -DBE Monthly Progress Report Form SMS 4903 Attachment 3 -DBE Final Report Farm SMS 4904 Attachment 4 -Prompt Payment Certification Form (Federal-air Projects) 2177 (g) CITY will designate a liaison officer to coordinate efforts with TxDOT's DBE Program administrators and to respond to questions from the public and private sector regarding CITY'S administration of the DBE Program through TxDOT. bBE/MOU 5128110 Page 2 of 6 ~ t i i1 i i ~ (h} CITY will be responsible for providing TxDOT with DBE project awards and DBE Commitments, monthly DBE reports, DBE Final Reports, DBE shortfall reports, and annual and updated goal analysis and reports. {i) TxDOT will be responsible for maintaining a directory of firms eligible to participate in the DBE Program, and providing business development and outreach programs. CITY and TxDOT will work cooperatively to provide supportive services and outreach to DBE firms in CITY area. {j) CITY will submit DBE semi-annual progress reports to TxDOT. (k) CITY will participate in TxDOT-sponsored training classes to include topics on Title VI of the Civil Rights Act of 1964, DBE Annual Goals, DBE Goal Setting for Construction Projects and Design Projects, DBE Contract Provisions, and DBE Contract Compliance, which may include issues such as DBE Commitments, DBE Substitution, and Final DBE Clearance. TxDOT will include DBE contractors performing work on CITY projects in the DBE Education and Outreach Programs. (1} The Executive Director of CITY will implement. all federal requirements, including those stated in Attachments A through F, which are incorporated as though fully set out herein for all purposes. {m) In accordance with 23 CFR 200.1, CITY shall develop procedures for the collection of statistical data (race, color, religion, sex, and national origin) of participants in, and beneficiaries of Sate highway programs, i.e., relocatees, impacted citizens and affected communities; develop a program to conduct Title VI review of program areas; and conduct annual reviews of special emphasis program areas to determine the effectiveness of program area activities at all levels. TxDOT, in accordance with federal law, may conduct compliance reviews by TxDOT's OCR. {n) CITY will comply with 49 CFR 26.29 as stated in Attachment F. {6) In the event there is a disagreement between TxDOT and CITY about the implementation of the TxDOT DBE Program by CITY the parties agree to meet within ten (l 0) days of receiving a written request from the other party of a desire to meet to resolve any disagreement. The parties will make good faith efforts to resolve any disagreement as efficiently as is reasonably possible in consultation with FHWA. Non-compliance by CITY can result in restitution of federal funds to TxDOT and withholding of further federal funds upon consultation with FHWA. (7) This Memorandum of Understanding becomes effective upon execution by all parties and automatically renews each year unless a party notifies the other parties of its intent to terminate the agreement. (8) If this Memorandum of Understanding is terminated for any reason, CITY will be allowed reasonable time in which to seek approval from FHWA for an alternative DBE Program, without being deemed non- compliant with 49 CFR Part 26. (9) This Memorandum of Understanding applies only to projects for which CITY is a sub- recipient of federal funds through TxDOT. CITY may also implement a Minority and Wornen-Owned Small Business Enterprise {M/W/SBE} policy and program that applies to projects for which it is not asub- recipient of federal funds through TxDOT and which are not subject to the TxDOT DBE Program. CITY may, at its option, use some aspects of the TxDOT DBE Program and other similar programs in implementing its DBE/iv[OU 5128110 Page 3 of 6 i i ~ ti ~ ~ 1 ~ other policies and programs for its non-federally funded projects. (10} The following attachments to this Memorandum of Understanding are also incorporated as if fully set out herein far all purposes: Attachment A -FHWA Memorandum HCR-1/HIF-1 (relating to access required by the Americans with Disabilities Act of 1990 and Section S04 of the Rehabilitation Act of 1973); Attachment B -SPECIAL PROVISION -Local GovetnmentlCDA/RMA/Non-Standard Contracts Attachment C - 49 CFR §26. i 3 (contractual assurances} Attachment D -DBE Program Compliance Guidance for Loca] Government Agencies Attachment E -- FHWA Form 1273 Attachment F -Texas Department of Transportation (TxDOT) Disadvantaged Business Enterprise (DBE) Program with attachments as follows: Attachment F 1 - DBE Regulations: 49 CFR Part 26 Attachment F 2 - DBE Special Provisions 000-461 Attachment F 3 - TxDOT's Organizational Chart Attachment F 4 - Measurement and Payment Special Provision 009-007 Attachment F 5 - Texas Unified Certification Program {TUCP) DBE directory example and website address to the directory Attachment F 6 - DBE Goal Methodology Attachment F 7 - DBE Bidder Certification Attachment F 8 - DBE Joint Check Approval Farm Attachment F 9 - TUCP Standard Operating Procedures (SOP) Attachment F 10 -TUCP Memorandum of Agreement (MOA) Attachment F 11 -Forms list { 11 } The following procedure shall be observed by the parties in regard to any notifications: {a) Any notice required or permitted to be given under this Memorandum of Understanding shall be in writing and may be affected by personal delivery, by hand delivery through a courier or a delivery service, or by registered or certified mail, postage prepaid, return receipt requested, addressed to the proper party, at the following address: THE CITY OF CORPUS CHRISTI: Hand Delivery: City of Corpus Christi Attn: Angel R. Escobar, City Manager City Hall Bldg, 5'h floor 1201 Leopard Strcet Corpus Christi, TX 78401 Registered or Certifted Mail (Return receipt requested): DBE/ivIOU 512$110 Page 4 of 6 .^ City of Corpus Christi Attn: Angel R. Escobar, City Manager 1201 Leopard Street Corpus Christi, TX 78403 Or City of Corpus Christi Attn: Angel R. Escobar, City Manager PO Box 9277 Corpus Christi, TX 78469-9277 THETEXAS DEPAR'TMENT' OF'1TZANSPORTATION: TEXAS DEPARTMENT OF TRANSPORTATION DBE Liaison Office of Civil Rights Address: 125 E. 11 th Street Austin, Texas 78701 (b) Notice by personal delivery or hand delivery shah be deemed effective immediately upon delivery, provided notice is given as required by Paragraph (a) hereof: Notice by registered or certified mail shall be deemed effective three (3) days after deposit in a U.S. mailbox or U.S. Post Office, provided notice is given as required by Paragraph (a) hereof. {c} Either party hereto may change its address by giving notice as provided herein. (12) This Memorandum of Understanding may be modified or amended only by written instrument, signed by both CITY and the Texas Department of Transportation and dated subsequent to the effective dates} of this MOU. Except as authorized by the respective parties, no official, employee, agent, or representative of the parties has any authority, either express or implied, to modify or amend this MOU. (13) The provisions of this MOU are severable. If any clause, sentence, provision, paragraph, or article of this MOU, or the app]ication of this MOU to any person or circumstance is held by any court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability shall not impair, invalidate, nullify, or otherwise affect the remainder of this MOU, but the effect thereof shall be limited to the clause, sentence, provision, paragraph, or article so held to be invalid, illegal, or unenforceable, and the application of such clause, sentence, provision, paragraph, or article to other persons or circumstances shall not be affected; provided; however, CITY and TxDOT may mutually agree to terminate this Memorandum of Understanding. (14) The following provisions apply in regard to construction of this MOU: (a) Words of any gender in this MOU shall be construed to include the other, and words in either number shall be construed to include the other, unless the context in this MOU clearly requires otherwise. (b) When any period of time is stated in this MOU, the time shall be computed to exclude the first day and include the last day of the period. If the last day of any period falls on a Saturday, DBE/MOU 5!28110 Page 5 of 6 r ~ ~ ~ ~ ~ ` ' Sunday, or national holiday, ar state or county holiday, these days shall be omitted from the computation. All hours stated in this MOU are stated in Central Standard Time or in Central Daylight Savings Time, as applicable. (l5} This Memorandum of Understanding shall not be construed in any way as a waiver by the parties of any immunity from suit or Iiability that parties may have by operation of law, and the parties hereby retain all of their respective affirmative defenses. EXECUTED in ~~ originals by TxDOT and CITY, acting through each duly authorized official and efFective on the latest date signed. The signatories below confirm that they have the authority to execute thisMOU and bind their principles. TEXAS DEPARTMENT OF TRANSPORTATION CITY OP CORPUS CHRISTI i ~y. . ~~ v Amadeo Saenz, r. P.E. Executive Director Date: 2~~ ~~~ By: ,cam R. Escobar ity Manager Date: ~~~z9/~~ -@~-;- ~ ~ ~ ~IfTHE?RIZED APFROV D AS TO LE L FORM: I7-.Iun-l0 ••••_••~~•• Veronica Ocanas s~~~~~'"~ Assistant City Attorney For City Attorney DBEIMOU 5128110. Page 6 of 6 I ,Attaichr~~nt ~ -~. ®isade~anta~ed Easiness ~ntcrE~rise (UBE} Pr~grxin Formsnnsaso; {Rav {~61Oti! CDmtnitmenfi A~I'E'BI11eElt )F'Ot'1t7 Page r o+'. ', ~Aa~iu~ax - r r..»wan.rw,~ Phis camntitment is subject to the award aria receipt of"a signed contract frown tl~e 'I'ex:is I)ep:trtment of 'l~r.ar~spurl:~tion fur the suhjrct project. ~~ Prajcct #; - I C:alrnty: _ ~L~untract-CSJ: ', ! Fta~ wv~rir h, hn nnrfnrrtif•r9 f!irr~r•h s~ licl nrtivnr& irart~c if mnra rnnus is rnnuirarll• ... w -""_ 1- ~ Rld ltCln # !tteln UCSCr'iptl8n l?nlf Uf n~L'SlSnre ~ l.ht9i Price QnantitV '1'{)tal Per Itertt ~--~ E " -------~ ---- i ~ "..~..~ ~ l --- ---- -- ~ .. - ~ I ----~ ~ J----~ - --"---._. ~ I -... _.... _ ........--- _._. "..._.. _". _...._---_. __ -.. __ 7'atal ___., 'i'hc contractor certifies by signature nn this agreement that subconirects will br executed between the prime contractor and the Dl3E subcontractors as !':sled, on the agreement form. Efa ~F3E Stabcuntracwr is unable to perform the work as listed on this agreement form, the primL contractor will follow the substitu[ion'replacement approval praccss as outlined ir1 the Contr:rc.t €]I3F~ Special Nrnvision. ~- I 114tPQR7'AV'1': The signatures of the pritne contrnctor and the D13C:, -I and the total commitment amount must always be on the same page. Prune Cnntractur: ]varnePl"tile (please prinq: ----•--- ~ -~"- Address: Signature: ~- { F'hnne: !Fax: ~ - ~" - _ -- T:-mail: Uate: DB£: 1~iame,~"f'itie (please print): Vendor No.: _" ;lddress: Signature: ~' i hone: f'ax: "-"-.--"---~ -- - _ --------- ----~-i 1~-mail: Uute: Subcantractur (if the ~IiE wilt be a second tier sub}: Name!7'itle (please print): Address: Signature: ___ -- I _.. _-...~. ".__. ` I:-mrtil: ~ Uate: I rue trews ucpar[snent ~€ rran~portaunss ntemtauss [ne mrnrmatu7n ccsnectca [nttougn tn[s 7(7nli. 1YIV3 tceti~ exceruorts, }'au are enntrec: ors request rn he inl'orm::d ahrnrt the information ti+al we crrllccl ,ybnut vnu. Under yti552.1121 and 552.U23 of Ihi:'1'~xas {;nverrrmcn: Code, you also rare. entitled to rtcci~~c unc! rep"irw lase infurm:itipn. I?nder ~SSy.pp n!~ the f~nvernnrcnl (,'ade. ~!~u ar"e also entitled try h:rve us correct inlirmsa[ron ahuul crsu that !5 incorrect. . 1 r7 ~nsurc pristnps any' efficient harsdlin~ of }-our prnjCta file c~C sre reyuesunu, dsrtl :+II c+'nnnsil:nerus to 6e €Srrxcrucd tr> r!tc t]tlicc of Ci+'il Rialus, tssine [Iris h~sic fisnnat r. r Q A ~tt~cF~rn~*~t 2 ~~ ,~ .. Project: County: Letting Date Contractor: DBE Goal: Texas Department Df Transportation F°~ms'a'°,;°3 ;r:ev Byres, DBE Monthly Progress Report 'p~"' °" ~/6 Cnntract CSJ: District: Far Month of (MoJYr ): Contract Amount: DBE Goai Datlars~ ~_~.~ i ~ Vendor I Number ~ _~___ i ~ Name of ^Bf ~ SutrlSupplier ; ~ ~ RC or RN ~-DBP---- b Amt Pald rot Work Performed this Period (x) ••• ~ Aml Paid to Non•baE 2nd Tier Subs and Haulers Iv} ~ Amt Pald to CBEs to Oate (X-Y) ~_ For 7x007 use Qnly ~ _.. ~__ I - _-.~. ---- _ ~ I I __ ........ __ .... ---._.._..._..--- ........................._....i ~------ ---...----...._ ~-- ---~-- I I --- , - ~ i --- __ 3 _ ~._---- - l ---_.....__ ~ Race Conscious or Race Neutral. *• Goallcommitment progress report amount and/or rata-neutral amount. Do not subtract non-DBE second-tier subcontractors and haulers from this column. •** Report amount of payment DBE subcontractors paid to non-DBE subcontractors/haulers. If using a non-DBE hauling firm that leases from DBE truck owner-operators, payments made to each owner- operatormust be reported separately, Any changes to the DBE commitments approved by the department must be reported to the area engineer. submission of this report for periods of negative DBE activity is required. This report is required until al! D8E subcon#racting or material supply activity is completed. I hereby certify that the above is a krue-and correct statement of the amounts paid to the DBI= firms listed above, Signature: Date: Carnpany Official This report must be sent to the area engineer's offrce within 15 days following the end of the calendar month he "texas Department of Transportat8gn maintains the infOrrnatipn colledetl through this farm. With few exceptions, you are entitled on request to be ln4crmed about the information that is collected about you Under §§552-023 and 552-023 of the Texas GOVernmeht Cade, you also are enlilEed to receive and review the intormalion. Vnder §559.004 of the Government Code. you are also entitled to have vs correct Informalson about you that is mcorrecl. ,~ ~ettach~'ter~t•3 ~` ~' .~ DBE Final Report F'~, 5M"~° ;Rev dih9i Fage + °! Tuef ueya.irswnr o! Rdns~~fxl/M The DBE final report €orm should be titled nut by the contractor and submitted to the appropriate district office upon completion of the project, One copy of the report !-rust be submrtted to the area engineers office. The report should reflect all DBE activity an the project, The repots wrU aid in expediting the Tina! estimate for payment. !€ the DBE goat requirements were not met, c4ocumentatlon supporting good faith efforts must be submitted. Project- Contract CSJ: County Control Project: t.etting Date. _-___ DBE Goal: °/u r'io ntra CtOr: Contract Am4uni: j Vendor ~ number ~ flame of DBE SuhlSupptier 'RC RN "DBE goal -total $ amt pd to date "' $ amt pd to non-DBE 2nd tier subs & haulers ; For Us Only ! I ~--- I ! .. -------~ - --- - ~ --~ t ------• -- _.~_____.-...~.__~. - - ----~--- ___. _......____--- _..._..__... ... _._ ...._ . _..._... -- J ----~--~---7 I l-- _.. ---- ------ ------ ~ Race Conscious or Race Neutral. •~ Goallcommitment progress report amount andlar race-neutral amount. Do not subtract non-0BE second- iier subcontractors and haulers from this column. ••~ DBE subcon#ractors paid to non-DBE subcontractorslhauler5. This is to certify #hat % of the work was completed by Disadvantaged Business Enterprises as stated above. By Per: fVame of General Contractor Contractor's Signature Subscribed and sworn to before me, this day of , A.D. Notary Public----~------------- - County ~~~_ My commission expires: The 'texas Depari!trenl of T'ransportatian maintains the rnformatirrn cnllerted !hreugh this form. Ndtth few exceptions yots are entitled an request. !a tae informed about [tze infarmalion that is coflecled al70u1 you Under §§552 021 and 552-02:1 of the Texas Govr?rnmenr Cotle, you also are entitled to receive and revlevr the Information. Under §558,004 of the Government Code, you are also entitled to have us correc! rnformatirsn abou4 you that is incorrect, A~a~hment ~ ,~ ~, -`~'~-`' Pr•aainpt PayEne~~ Certai'iratio~ ~°rmz'7r ~Rw.7f26p7} ta'~'°,~:' (Federal-Aid Projects) fcso-~Pef ~'~r`n''~'", Vage i of ~ hi accurJancc: ~; ith the recluirei~~et~ts of Article 6,e of the- D131r special provisinrt and the prompt 1)a~-ment elaus~ under Article 4.0.13 and related special provisions, submit this certifictttit~rr [i~rm to iht t'rt~inccr prier u~ the end of the month follavvin~ the month pat°m4nts ~t'ere receivc;d fralr~ the department and the. nu)nih fallo+~ ing the month ~+~hen final acceptance ciccurred, at tl7e end of the prc~ji:ct. ~F'inal sub;nission ma~• be made prier to iin~l acceptance 'si'ail subae~nv~tctar work artd supplier material furnished for the project is complete and the suhcc)ntractors and suppli[:rs final ptyments h2tve been made to full.) 'T'ht' F,ny~~int;e!• may withheld payments or suspend wark fi)r failure to submit this iortn or prar•ic9~ prompt payment in accordance: ~aitPt the e~untract. 'Phis CCr'ttilCatiat't !S appltc.lbie to matsrritsls the C'antractor purchases to remain ati part of the f-tnttl project and to lirst tier strbconiraculrs on the project and associated project specific locations. {5ubcantracrcrrs and suppliers are to compi~~ ~~~ith the prompt ptryment requirements.) Certifratiors "1 cc rlrfy thin lv the bc~s! of reel kr7~rr+•lecl~[~ ar~r[I irrlh the i!t(:Pf1f)017 l)j 1~71).S'N .+'~lfJ(:YNNYLICIors r~r sr.rplllicrr lisrc.cl fii !u x', trl! s7r6c[)ratr•rulc)rs in7[.1 su11111ic~r~~ hrlvr•hcx~rr ~)uir~l in uceardcrru~rr r}~ilh !0)N cr)rr/rercl (I f7 cfcn~s ajier r[r~:eivil7•~ paVflre'r7I far the srnrk perfilr•ru[rc~ L»' the su6c'o>?Ircrc're1r1 crrrc! tltar run' reluirrfrkf[: h[~Id 037 CY .S'dlh['U3711'f7iY0!- r1!' -S'7l~71711(:1- .S' l1'UI'k 17CLS I7L'C'1? relC'G1.5'L'fI r,~ifl7rra 1(1 rlcrv.x r{jeer scrlis~fcrc'1[~r-vc'nrnple7in)7afufl of ihc .ruhrar7tracrr~l•s'[)r-sry~pli[~rs' work." Nroject Number: I•:stimate Period: n°tanth 1'car Signature Printed Name:: fhe. following firms Irtve not been paid far reasons krsted: C'CSJ; [fir Fin.rl Subcontractor and Supplier Payment Uat[: 'I-itie Iaale Firm -------- j * Res+son for' Nosy-i'ayment--- i 'Only rcasor,s hosed on dispute on subcc,ntraeior +~r s~ri~plier nnncnmpliance nur~ be ctccepitd. ~, 'I his ceriitication is fir the dcp~3rtment's il~fcrrmatian only and does not place arty obligations tm the part c,f the department ++ ith mgard to .snv })art, including hrrt ncrt liniitrd to, am' subrot~rracrar tend Contract[>r's sureri°. i r3 ~ ~ ~ ' 5 Attachment A • r + • '• ; Memorandum U.S. Department of Transportation Federal Highway Administratian Sui~ject: ACTION: Clarification of I=HWA's Oversight Roie in Date: 9-12-OB Accessibility From: Frederick D. Isler Reply to Attn. of: HCR-1 Associate Administrator for Civil Rights HIF-1 King W. Gee Associate Administrator for Infrastructure . Ta: Associate Administrators . Chief Counsel -Chief Financial Officer Directors of Field Services Resource Center Director and Operations Managers Division Administrators Federal Lands Highway Division Engineers The Federal Highway Administration {FHWA) recognizes the need for the transportakion sys#em to be accessible to al! users. The purpose of this memorandum is to clarify FHWA's role and responsibility to oversee compliance on pedestrian access required by the Americans with Disabilities Act of 1990 (ADA) and Section 5U~# of the Rehabilitation Act of 1973 (Section 501}, Since 198, FHWA has promoted accessible transportation systems through technical assistance and guidance on ADA and Section 51}4. In addition, accessibility improvements are eligible far Federal- aid funding. The 1=HWA is responsible for implementation of pedestrian access requirements from the ADA and Section 5Q4. This is accomplished through stewardship and oversight over all Federal, State, and local governmental agencies ("public agencies") that build and maintain highways and roadways, whether ar not they use Federal funds on a particular project. Policy In February 24DI), the FHWA issued a policy providing technical guidance to integrate facilities for pedestrians, including persons with disabilities, into the transportation infrastructure. The guidance can be found at wwwTfhwa.dot.aovlenyiror;mentlbikepedldesian.him#d4. The ADA and Section 504 do no# require public agencies to provide pedestrian facilities. However, where pedestrian facilities exist they must,be accessible. Furthermore, when public agencies construct improvements providing access far pedestrians, the completed pro}ect silo must meet accessibility requirements far persons with disabilities to the maximum extent feasible. Planning Title 23 requires that long-range transportation plans and transportation improvement programs, in both statewide and metropoli#an planning processes, provide far the development and integ-ated management and operation of accessible transportation systems and facilities. Additionally, State DQTs and Metrapaiitan Planning Organizations (MPOs) must certify {at least biennially for State DOTS and annually for MPOs) #hat the transportation planning process is being carried out or conducted in accordance with all FHWA, Federal Transit Administration and other DBE/MOU 36108 Pagc 1 of 27 ~ r ' t '~ X ~ applicable Federal statutory and regulatory requirements [see 23 CFR 460.220 and 23 CFR 450.334, respec#ively]. Further, 23 CFR 450.316(b)(3) requires the metropolitan planning process to identify actions necessary to comply with the ADA and Section 504. Transition Plans The ADA and Section 504 require State and local governments with 60 ar more employees to perform aself-evaluation of their current services, policies, and practices that do not or may not meet ADA requirements. The public agency musk develop a Transition Plan addressing these deficiencies. This plan assesses the needs of persons with disabilities, and then schedules the required pedestrian accessibility upgrades. The Transition Plan is to be updated periodically, with its needs reflected in the processes utilized by State DOTS, MPOs, and transit agencies to develop the Statewide Transportation Improvement Programs and metropoli#an Transportation Improvement Programs. Projects Public agencies should work to meet accessibility requiremen#s throughout the project delivery process. Issues surrounding pedestrian accessibility should be addressed at the earliest stage possible to reduce ar prevent conflicts with other right-of--way, p{arming, environmental, and design consideratiars. This could Include the acquisition of right-vf-way and use of special plain details far specific locations to remove barriers. Projects requiring pedestrian accessibility include projects for mew construction and projects altering existing street and highway facilities. New Cons#ruction All projects for new construction that provide pedestrian facilities must incorporate accessible pedestrian features to the extent technically #easible, without regard to cost. The development process should ensure accessibility requirements are incorporated in the project. Alterations Alterations shall incorporate accessibility improvements to existing pedestrian facilities to the extent that those improvements are in the scope of the project and are technically feasible, without regard #o cost. Projects altering the usability of the roadway must incorporate accessible pedestrian improvements at the same- time as the alterations to the roadway occur. See Kinney ~. Yerusaiim, 91=.3d 1087 (3d Cir. 1993}, cert. denied, 591 U.S.C. 1033 (1994). Alteratiors are changes to a facility in the public right-of--way that affect or could affect access, circulation, ar use by persons with disabilities. The FHWA has determined #hat alterations are projects tha# could affect the structure, grade, function, and use of the roadway. Alteration projects include reconstruction, major rehabilita#ian, structural resurtacing, widening, signal installation, pedestrian signal installation, and projects of similar scale and effect. Maintenance Maintenance activi#ies are not considered alterations. Therefore, maintenance projects do not require simultaneous improvements to pedestrian accessibility urder the ADA and Section 604. The tJ.S. Department of Justice (DQJ) and the courts consider maintenance activities to include filling potholes. The FHWA has determined that mainterance activities include actions that are intended to preserve the system, retard #uture deterioration, and maintain the func#ional'condition of the roadway without increasing the structural capacity. Maintenance activities include, but are not limited to, thin surface overlays (nonstructural), joint repair, pavement pa#ching (fillirg po#holes}, shoulder repair, signing, striping, minor signal upgrades, and repairs to drainage systems. As part of maintenance operations, public agencies' standards and practices must ensure that the day-to-day opera#ions keep the path of travel open and usable for persons with disabilities, throughout the year. This includes snow amd debris removal, maintenance of pedestrian traffic in work zones, and correction of other disruptions. Identified accessibility needs should be Hated and incorporated into the transition plan. Accessibility Design Criteria for Sidewalks, Street Crossings, and Trails Sidewalks and Street Crossings Where sidewalks are provided, public agencies shall provide pedestrian access features such as continuous, unobstructed sidewalks, and curb cuts with detectable warnings at highway and street crossings. 28 CFR 36.161(c}, referencing 28 CFR Part 36, App. A, ADA Accessibility Guidelines (ADAAG). The FHWA encourages the use of ADAAG standards. If pedestrian signals are provided, they must have a reasonable and consistent plan to be accessible to persons with visual disabilities. DBE/MOL13610$ Page 2 aF27 ~~ ~. i4 Sidewalks and s#reet crossings generally should use the guidelines the Access Board is proposing for public rights-of-way. The FHWA distributed an inforrrtation memorandum on November 20, 2001, stating that Designing Sidewalks and Trails, Partli, Best Practices Design Guide can be used to design and construct accessible pedestrian #acilities. This report provides information on haw to implement the requirements of Title II of the ADA. Designing Sidewralks and Trails for Access is the most comprehensive report available for designing sidewalks and street crossings and con#ains compatible information on providing accessibility with information published by the Access Board in the ADAAG. This repar# can be found at www.fhwa.dot.govlenvironmentlsidewalk2. When the Access Soard completes guidelines far public rights-of-way and they are adopted by the United States Deparkment of Transportation and DDJ as standards under the ADA and Section 504, they will supersede the currently used standards and criteria. When Federal-aid highway program #unds are used for parking facilities, or buildings such as transit facilities, rest areas, information centers, transportation museums, historic preservation projects, or other projects where pedestrians are expected, the project must meet the current applicable accessibility standards, whether or not the project is within the public right-of-way. The ADAAG includes special provisions for bui#ding alterations and far historic preservation projects. Shared Use Paths and Trails The design standards far shared use paths and #rails are specific to the function of the path or trail: v Shared use paths and pedestrian trails that function as sidewalks shall meet the same requirements as sidewalks. Where shared use paths and pedestrian trails crass highways or streets, the crossing also shad meet the same requirements as street crossings, including the provision of detectable warnings. Shared use pa#hs and pedestrian trails that function as trails should meet the accessibility guidelines proposed in the Access Board's Regulatory Negatiafion Committee on Accessibility for DufdaarDeveloped Areas Final Report found at .access-board, avloutdoor/outdoor-rec- rgt.htm. This report also has guidelines far Qutdaor Recreation Access Routes (routes connecting accessible elements within a picnic area, camping area, or a designated trailhead). o Recrea#inal trails primarily designed and constructed for use by equestrians, mountain bicyclists, snowmobile users, or off-highway vehicle users, are exemp# from accessibility requirements even though #hey have occasional pedestrian use. Most trailside and trailhead structural facili#ies (parking areas, restrooms} must meet the ADAAG standards. Technics! Feasibility and Cost When constructing a new transportation facility or altering an existing transportation facility, a public agency should consider what is included within the scope of the project. For elements that are within the scope of the project, the AOAAG provides that "Any features of a...facility that are being altered and can be made accessible shall be made accessible Ci.e., made to conform with ADAAG] within the scope of the alteration." ADAAG 4.1.6(]}. The only exception to this rule is where conformity with ADAAG is "technically infeasible," meaning that "existing structural conditions would require removing or altering aload-bearing member which is an essential part of the structural frame [e.g., in the case of a highway project, a bridge support]; or because other existing physical or site constraints prohibit modification of addition of elements, spaces, or features which are in foil and skrict compliance with the minimum requirements far new construction and which are necessary to provide accessibility." ADAAG 4.1.8(j). Where making an alteration that meets accessibility requirements is technically infeasible, the public agency must ensure that the alteration provides accessibility to the "maximum ex#ent feasible." If a public agency believes that full ADAAG compliance is technically infeasible, the public agency should document that the proposed. solution to the problem meets the "maximum extent feasible" test. With respect to any element of an alteration that is within the scope of the project and is not technically infeasible, DOJ guidance provides that under ADAAG standards "cost is not a factor." DOJ Technical Assistance Manual far Title II of the ADA, !I-8.3100(4). Consequently, if the accessibility improvement is technically feasible, the public agency must bear the cos# of fully meeting ADAAG standards. However, cast may be a factor in determining whether to under#ake a stand-alone accessibility DBEIMOU 36lU8 Pxge 3 of 27 i i 1. 2 improvement identified in a Transition Plan. For example, if an existing highway, not scheduled for an alteration, is listed in the public agency's Transition Plan as needing curb cuts, the public agency may consider casts that are "unduly burdensome." The test far being unduly burdensome is the proportion of the cost for accessibility improvements compared to the agency's overall budget, not simply the project cost. If the project alters any aspect of the pedestrian route, it must be replaced with accessible facilities. Additional work outside of the scope and limits of the project altering a facility is at the discretion of the agency. However, any features not conforming to ADA requirements outside the project scope should be added to the Transition Pfan. FHWA Responsibilities The FHWA is responsible for ensuring public agencies meet the requirements of the ADA and Section 504 for pedestrian access for persons with disabilities. Under DOJ regulations, FHWA divisions must work•with their State DOTS, MPOs, and focal public agencies to ensure ADA and Section 504 requirements are incorporated in all program activities #or all projects within the public right-of-way regardless of funding source, Program activities include projeot punning, design, construction, and maintenance. Furthermore, FHWA is responsible for ensuring accessibility requirements for projects that are not within public right-of--way, but use funding through FHWA. This includes parking areas, information centers, buildings, shared use paths, and trails. Divisions have a legal responsibility to work with State agencies or other recipients to ensure ADA and Section 504 requirements are incorporated into ail projects using funding through FHWA. For all projects that use Federal funds as part of the financing arrangements, the division offices need to periodically: • Review those projects, where #hey have oversight responsibilities, for accommodafian of pedestrians. The divisions shall not approve Federal funding for projects that do not adequately provide. pedestrian access far persons with disabilities where the project scope and limits include pedestrian facilities in the public right-of--way. • Review the Stewardship Agreement to ensure pedestrian accessibility requirements are included, as appropriate. • Review the State DOT, MPO, andlor local jurisdiction processes, procedures, guidelines, and/or policies that address ADA in transportation planning and programming processes and how accessibility commitments are addressed in transportation investment decisions. • Assist transportation agencies in updating their Transition Plans. The United States Departmen# of Transportation Section 504 regulation requires FHWA to monitor the compliance of the self evaluation and Transition Plan of Federal-aid recipients (49 CFR 27.11}. The ADA deadline for completing the accessibility improvements within the Transition Plan was in ~ 995. For those State and local governments that have not performed the self-evaluation and prepared a plan, it is critical that they complete the process. • ~ Encourage and facilitate training for FHWA personnel on accessible pedestrian features. • Ensure pedestrian accessibility compliance through periodic program reviews of recipients' highway planning, design, and construction activities. • In addition, the Federal Lands Highway Divisions should ensure that each direct Federal construction project fulfills bath policy guidance on pedestrian access and meets the minimum ADA and Section 504 accessibility requirements. Far all highway, street and trail facilities, regardless of whether Federaf funds are involved, the division offices need to: • Pertorm onsite review of complaints abou# accessibility and report the findings of the review to HCR-1. Make presentations and offer training an pedestrian accessibility at meetings, conferences, etc. DBE/MOU 36108 Page 4 oF27 ~ i `~ o Irt contacts with State and local officials, encourage them to develop procedures for incorporating pedestrian accessibility into their projects. Additional Information and Resources A Web site with auestions and answers concerning recurring issues, training opportunities, and background legal informakion an FHWA's responsibilities under the ADA and Section 504 is located at htto:/Iwww.fhwa.dat.aovlciviirightslindex.htm. This memorandum has been reviewed and approved by the U.S. Department of Transportation General Counsel as consistent with applicable disability law. Questions concerning these obligations may be directed tai • For Accessibility Policy: Candace Graudine, Bob Cosgrove, Office pf Civil Rights For Design Standards: William A. Prosser, Office of Program Administration ® For Trails; Christo her Douwes, Office of Natural and Human Environment e For Construction and Maintenance: Christaoher Newman, Office of Asset Management • For Legal: Lisa MacPhee, Office of the Chief Counsel ~~ ~~ ~~ q $ . This page last modified on March 6, 2007 -~i~w:`~~~i ~1 '~~ 1 ~.,~ FHWA Hame ~ Civil Rights Home ~ Feedback ~ FH'~IA United States Department of Transportation - Federal highway Administration DBERvIOU 36!08 Page 5 of27 s ~ ~ ~ Si ~~ These questions and answers are presented to help FHWA and its Skate and local transporta#ion department partners better understand roles and responsibilities to provide accessible transportation facilities under the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 (Section 5D4): These questions and answers are derived from extensive experience and input from the FHWA Qfl•ices.of Civii Rights, Infrastructure, Chief Counsel, and Planning, Environment, and Realty. Like ail guidance material, these. questions and answers are not, in themselves, legally binding and do-not constitute regulations. These Q&As explain the FHWA's position on the implementation of the ADA and Section 504. These questions and answers have been reviewed and approved by the U.S. Department of Transportation General Counsel as consistent with applicable disability law. The FHWA Offices of Civii Rights, Infrastructure, Chief Counsei, and Planning, Environment, and Realty developed these questions and answers and approved them as consistent with the language and in#ent of the ADA and Section 5D4. The questions and answers outlined in this document are to be applied to Federal, State, and local governmental agencies, hereafter called "public agencies" or "agencies." Public Agencies covered by ADA and Section 504 1. What authority reauires_public agencies to make public right of way accessible for all pedestrians with disabilities? 2. Wha# do these statutes require putrlic agencies to do? 3. Does the ADA re wire ublic a encies to rovide edestrian facili#ies? 4. What is FHWA's responsibiliky for assuring access for persons with disabilities? What public agencies must provide accessiblg„pedestrian,waikwavs for persons with disabilities? 6. Can a public agency make private individuals yr businesses responsible, for ADA and Section 5D4 mandated pedestrian access? What _nited_State~artment o Justice !U$DOJ and Unite, ,,,,,,_ _,_,,,__ 7. _ ) ' „d Sates Department of Transportation (USDOT regulations govern accessibility requirements? 8. What is, FHWA's authority to implement AC7A,and,Sectlon 5D4 requirements? 9. What is the public right of wad Transition plans 10. What authority requires public agencies to make transition plans? 11. What should a transition Alan include? 12. How does the transition plan relate to a_eubiic agency's transportation planning process? 13. What public agencies must make a transition, plan? 14. When.should_the FHWA review an agency's transition plan? 15. When and how should a transition plan be updated? Projects Covered by the ADA and Section 504 16. What ro'ects must rovide edestrian access far ersvns with disabilities? 17. What projects constitute an alteration to the public right of way? 1 S. What activities are not considered to be alterations? Turtling of Accessibility Improvements DBEIMQU 36108 Page 6 of27 'S 19. Does a proict al#ering a public right of wav require simultaneous accessibility improvements? 20. When does the scoAe of an alteratian~raject trigger accessibility m~arovements Far people with disabilities? 21. Do maintenance activities require simultaneous improvements of the facili#v to meet ADA standards? 22. When should accessible design elements be incorporated into nraiects in the public right of wav? Cost 23. Haw does cost factor into a pubiic agency's decision in its transition plan concerning which existing facilities must comply with ADA~nd Section 504 pedestrian access requsrements7 24. Far a new. project planned outside of the transition plan, with ADA accessibllity improvements repaired to rr~ake the facility readily accessible and useable by individuals with disabilities. can cast be a reason not to complete an ADA-required accessibiiity improvement? 25. i=or an alteration nrQiect planned outside of the #ransition_plan, with ADA accessibility improvements 26. What role does the "maximum extent feasible" standard play for ADA accessibiiity requirements in altered projects? 27. What should a ublic a enc do when it does not control all of the ubiic ri ht of wa re aired to rovide access for persons with disabilities? 28. Can a ,pubiic agency delay compliance with the ADA and Section 504 on alteration proiects through a systematic approach to schedule praiects? Elements of Accessible Design 29. What are the elements of an accessible design? Funding 30. What sources of fundinq_may be used to comply wi#h ADA and Section 504 requirements? Maintenance 31. What obligation does a public agency have regarding snow removal in its walkways? 32. What day-to-day maintenance is a,public agency_responsibie for under the ADA? Criteria 33. What accessibility training is available? 34. Where is. information an the criteria to be used in developing accessible facilities? Public Agencies covered by ADA and Section 504 1. What authority requires public agencies to make public right of-way accessible far a!1 pedestrians with disabilities? Public rights-of-way and facilities are required to be accessible to persons with disabilities through the fallowing statutes: Section 504 of the Rehabiiitatian Act of 1973 (Section 504} (29 U.S.C, §794) and Title II of the Americans with Disabilities Act of 7990 (ADA) (42 tJ.S.C. §§ 12131-12164). The laws work together to ' aci~ieve this goal. {9-12-06} 2. What do these sfafutes require public agencies to do? These statutes prohibit public agencies from discriminating against persons with disabilities by excluding them from services, programs, or activities. These statutes mean that the agency must provide pedestrian access for persons with disabilities to the agency's streets and sidewalks, whenever a pedestrian facility DBERNOU 36108 Page 7 of 27 ' ~ ~ ~ 1, ~ exists. Regulations implement this requirement by imposing standards for accessible features such as curb cuts, ramps, continuous sidewalks, and detectable warnings. (9-12-06} 3. Does the ADA require public agencies fo provide pedestrian facilities? No. However; when a public agency provides a pedestrian facility, it must be accessible to persons with disabilities to the extent technically feasible. 4. What is FHWA's responsibility for assuring access for persons with disabilities? FHWA is responsible for ensuring access far persons with disabilities in four areas: 1. Far surface transportation projects under direct FHWA control {e.g., Federal Lands projects): FHWA is responsible for ensuring that project planning, design, construction, and operations adequately address pedestrian access for people who have disabilities. 2. For Federally funded surtace transportation projects that provide pedestrian facilities within the public right-of-way: FHWA is responsible for ensuring that the public agencies' project planning, design, and construction programs provide pedestrian access for persons with disabilities. FHWA #unded projects outside of the public right-of-way, such as Transportation Enhancement projects, must also adhere to these requirements. 3. For pedestrian facilities within the public right-of-way, or arty other FHWA enhancement project, regardless of funding source: FHWA is responsible for investigating complaints. 28 CFR §§ 35.170 -- 35.190. 4. FHWA should provide or encourage accessibility training for Federal, State, and local agencies and their contractors. FHWA does not have ADA oversight responsibilities for projects outside of the public right-of-way that da not use Federal surface transportation program funds. (9-12-06} 5. What public agencies must provide accessible pedestrian walkways for persons with disabilities? All State and loco! governmental agencies must provide pedestrian access for persons with disabilities in compliance with ADA Title II. 42 U.S.C. §12131{1). Federal, State, and focal governments must provide pedestrian access for persons with disabilities in compliance with Section 504 standards. 29 U.S.C. §794(a). {9-12-06) 6. Can a public agency make private individuals or businesses responsible far ADA and Section 504 mandated pedestrian access? No. The public agency is responsible for providing access for persons with disabilities. Private entities with joint responsibility for a public right-of--way, such as a private tenant on public property, are responsible for accessibility for persons with disabilities on the public right-af-way under Title II of ADA. The lease or o#her document creating this legal vela#ionship should commit the priva#e party to ensuring accessibility. in addition, publiclprivate partnership relationships for the public right-ofi-way retain accessibility obligations to persons with disabilities under Title II. !f the private entity eventually takes over the right-of-way in its entirety, then the priva#e entity becomes responsible for accessibility for persons with disabilities under the private entity's obligations under Title III of the ADA. {9-12-fl6} 7. What United States Department of Jusfice (DOJ) and United 5tafes Department of Transportation (DOT} regulafions govern accessibility requirements? The DO.i ADA regulation is 28 CFR Part 35. The DOT Section 504 regulation at 49 CFR Part 27 governs public agencies, with the ADA incorporated at 49 CFR §27.19. Additional regulations dra#ted specifically for recipients of the Federal Transit Administration are at 49 CFR Part 37. {9-12-fl6) 8. What is FHWA's authority to implement ADA and Section 504 requirements? The DO.f regulations designate the DOT as the agency responsible for overseeing public agencies' compliance with the ADA. 28 CFR §35.190(b){8). The DOT has delegated to the FHWA the responsibility to ensure ADA compliance in the public right-of-way and on projects using surface transpartatian funds. (9-12- 08} 9. What is the public right-of-way? The public right-of--way consists of everything between right-of--way limits; including travel lanes, medians, planting strips, sidewalks, and other facilities. (9-12-fl6) Transition -plans 10. What aufhority r®quires public agencies to make transition plans? The ADA requires public agencies with more than 50 employees to make a transition plan. 28 CFR DBE/MOU 36!08 Page 8 of 27 ,t ~ 11. What should a transition plan include? The transition plan must include a schedule for providing access fee#ures, including curb ramps for walkways. 28 CFR §35.150(d)(2}. The schedule should first provide for pedestrian access upgrades to State and loco! government offices and facilities, transportatioh, places of public accommodation, and employers, followed by walkways serving other areas. 28 CFR §35.150{d){2}. The transition plan should accomplish the fallowing four tasks: 1. identify physical obstacles in the public agency's facilities that limit the. accessibility of its programs or activities to individuals with disabilities; 2. describe in detail the methods that will be used to make the facilities accessible; 3. specify the schedule far taking the steps necessary to upgrade pedestrian access to meet ADA and Section 504 requirements in each year following the transition plan; and 4, indicate the official responsible for implementation of the plan. 28 CFR §35.150{d)(3}. {9-12-06) 12. How does the transition plan relafe fo a public agency's fransportation planning process? The ADA transition plan is intended to identify system needs and integrate them with the State's planning. process. The transition plan and its identified needs should be fully integrated into the public agency's Statewide Transportation Improvement Program (STiP) and metropolitan Transportation Improvement Program {TIP}, Agencies should incorporate accessibility improvements into the transportation program on an ongoing basis in a. variety of ways: 1. Any construction project that is programmed must meet accessibility requirements when built. 2. Accessibility improvements identified in the transition plan that are not within the scope of an alteration project should be incorporated into the overall transportation planning process. This can be accomplished through the development of stand-alone accessibility projects. 3. As a means to identify ADA compliance needs, during scheduling maintenance activities, the agencies should identify ADA accessibility needs and incorporate them into the overall transportation planning process. (9-12-06} 13. Whaf public agencies must make a transition plan? The ADA requires any public agency with more than 50 employees to make a transition plan setting forth the steps necessary to make its'facilities accessible to persons with disabilities. 28 CFR §35.150{d). {9-12-06} 14. When should the FHWA review an agency's #ransifivn plan? DOT Section 504 regulation requires FHWA to monitor the compliance of the self-evaluation and transition pions of Federal-aid recipients {49 CFR §27.11). The FHWA Division offices should review pedestrian access compliance with the ADA and Section 504 as part of its routine oversight activities as defined in their stewardship plan. (9-12-06) 15. When and how should a transition plan be updated? An agency's transition plan should have been completed by January 26, 1992, and shouid be based on updates of the self-evaluation conducted to comply with the requirements of Section 504. 28 CFR §35. ~ 05, The plan shouid be updated periodically to ensure the ongoing needs of the community continue to be met. The transition plan should be coordinated appropriately with the STIP and the TIP. Changes to the plan shall be made available to the public for comment. The pubiic agency should specifically target any local community groups representing persons with disabilities for comment, to ensure that the agency is meeting the local priorities of the persons with disabilities in that community. If a public agency has never completed a transition plan, the Division should inform the pubiic agency to complete a transition pion now and review that public agency's completed transition plan. The ADA deadline for completing the improvements listed in the transition plans was January 26, 1995. For those State and localities that have not completed their self-evaluation and transition plans, it is critical that they complete this process. {9-12-06) Projects Covered by the ADA and Section 504 16. What prajecfs must provide pedestrian access for persons with disabilities? Any project far construction or alteration of a facility that provides access to pedestrians must be made accessible to persons with disabilities. 42 U.S.C. §§ 12131 -12934; 2$ CFR §§ 35.150, 35.151; Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993), cert. denied, 511 U.S. 1033 (1994). (9-12-06) 17. Whaf protects constitute an alteration fo the public right-of way? An alteration is a change to a facility in the public right-of-way that affects br could affect access, circr,~iation, or use. Projects altering the use of the pubic right-of--way must incorporate pedestrian access improvements within the scope of the project to meet the requirements of the ADA and Section 504. These projects have the potential to affect the structure, grade, ar use of the roadway. Alterations include items such as reconstruction, major rehabilitation, widening, resurfacing (e.g. structural overlays and mill and fill), Signal DBE/MOU 3b/08 Page 4 of 27 ' ~ ~ s. ~ .installation and upgrades, and projects of similar scale and effect. (9-12-06) 18, What activities are not considered to be alterations? The DOJ does nak consider maintenance activities, such as filling potholes, to be alterations. The pOJ does consider resurfacing beyond normal maintenance to be an alteration. DOJ's ADA Title I{ Technical Assistance Manual, § I1-8.6000, 1993. The t=HWA has determined that maintenance activities include actions tlia# are intended to preserve the system, retard future deterioration, and maintain the functional condition of the roadway without increasing the structural capacity. These activities include, but are not limited to, thin surface treatments (nonstructural), joint repair, pavement patching {filling potholes}, shoulder repair, signing, striping, minor signal upgrades, and repairs to drainage systems. (9-12-08} Timing of Accessibility Improvements 19. Does a project altering a public right-of way require simultaneous accessibility improvements? Yes. An alteration project must be planned, designed, and constructed so that the accessibility improvements within the scope of the project occur at the same time as the alteration. 29 CFR § 35.151; Kinney v. Yerusallm, 9 F.3d 1067 (3d Cir, 1993), cert. denied, 511 U.S. 1033 {1994}. The ADA does not stipulate how to perform simultaneous accessibility improvements. For example, a public agency may select specialty contractors to perform different speciallxed tasks prior to completion of the alteration project or concurrently with an ongoing project. (9-12-08) 20. When does fire scope of an alteration project trigger accessibility improvements for people with disabilifies? The scope of an alteration project is determined by the extent the alteration project directly changes or affects the public right-of-way within the project limits. The public agency must improve the accessibility of only that portion of the public right-of--way changed or affected by the alteration. If a project resurfaces the street, for accessibility purposes the curbs and pavement at the pedestrian crosswalk are in the scope of the project, but the sidewalks are nat. Any of the features disturbed by the construction must be replaced so that they are accessible. Al! remaining access improvements within the public right-of-way shall acctlr within the schedule prodded in the public agency's planning process. (9-12-06) 21. Do maintenance activities require simultaneous improvements of the facilify to meet ADA standards? No. Maintenance activities do not require simultaneous improvements to pedestrian accessibility under the ADA and Section 504. However, in the development of the maintenance scope of work identified accessibility needs should be incorporated into the transition process. (9-12-06) 22. When should accessible design elements be incorporated into projects in the public right of-way? FHWA encourages the consideration of pedestrian needs in all construction, reconstruction, and rehabilitation projects. If a public agency provides pedestrian facilities, those facilities must be accessible to persons with disabilities. A public agency is not relieved of its obligation to make its pedestrian facilities accessible if no individual with a disability is known to live in a particular area. This is true regardless of its funding source. DOJ's ADA Title !I Technical Assistance Manual, § II-5.1000, 1993. {9-12-OB} COSt 23. How does cost factor into a public agency's decision in ifs transition plan concerning which existing facilities must comply with ADA and Section 504 pedestrian access requirements? For existing facilities requiring accessibility improvements as scheduled in the transition plans, the public agency must provide accessibility improvements unless the cost of the upgrades is unduly burdensome. The test for being unduly burdensome is the proportion of the cost far accessibility improvements compared to the agency's overall budget, not simply the project cost. 28 CFR Part 35, App. A, discussion at §35.150, ~ 4 - 7. The decision that pedestrian access would be unduly burdensome must be made by the head of a public agency or that official's designee, accompanied by a written statement of the reasons for the decision. 28 CFR §35.1~0(a}(3}. (9-12-06} 24. For a new project planned outside of the transition plan, with ADA accessibility improvements required to make the facility readily accessible and useable by individuals with disabilities, can cast be a reason not to complete an ADA-required accessibilify improvement? No. Cosk may not be a reason to fail to construct or delay constructing a new faciity so that the facility is readily accessible to and useable by persons with disabilities under the ADAAG standards. 28 CFR §35,151{a); see DOJ Technical Assistance Manual for Ttie EE of the ADA, II-6.3100(3). (9-12-06) 25. For an alteration project planned outside of the transition plan, with ADA accessibility improvements required within the scope of the project, can cost be a reason to decide whatADA-required improvements will be completed? No. Cost may not be a reason for a public entity to fail to complete an ADA-required improvement wi#hin the DSEIMO[) 3b/0$ Page 10 of 27 S t scope of an alteration project under the ADAAG standards. A public agency must complete any ADA-required accessibifi#y improvements within the scope of an alteration project to the maximum extent #easible. 28 CFft §35.151(b}; DOJ Technical Assistance Manual for Title II of the ADA, II-6.3100(4). (9-12-06) 26. What role does the "maximum extent feasible"standard play far ADA accessibility requirements in altered projects? In an alteration project, the public agency must incorporate tfi~e ADA accessibility standards to the maximum extent feasible. 28 CFR §35.151(b}. The feasibility meant by this standard is physics! possibility only. A public agency is exempt from meeting the ADA standards in the rare instance where physical terrain ar site conditions restrict constructing or altering t#~e facility to the standard. ADA Accessibility Guidelines 4.1.6{1)(j}. Cos# is not a lector in determining whether meeting standards has been completed to the maximum extent feasible. DOJ's ADA Title Il Technical Assistance Manual, § II-6.3200(3)-{4}, 1993. No particular decisionmaking process is required to determine that an accessibility improvement is not technically feasible, but the best practice is to document the decision to enable the public agency to explain the decision in any later compliance review. {9-12-06} 27. What should a public agency do when it does not control al! of the public right-of-way required to provide access for persons with disabilities? The public agency should work jointly with all others with interests in the highway, street, ar walkway to ensure that pedestrian access improvements occur at the same time as any. alteration ar new project. The ADA encourages this canperation by making each of the public agencies involved subject to complaints or lawsuits fnr failure to meet the ADA and Section 504 requirements. 28 CFR §§ 35.170 -~ 35.178. {9-12-08} 28. Can a public agency delay compliance with the ADA and Section 504 on alteration projects through a systematic approach fo schedule projects? No. A!I pedestrian access upgrades within the scope of the project must occur at the same time as-the alteration. Kinney v. Yerusallrn, 9 F.3d 1067 {3d Cir. 1993), cert. denied, 511 U.S. 1033 {1994). (9-12-06} Elemen#s of Accessible Design 29. What are the elements of an accessible design? Public agencies have the choice of whether to follow the standards in the ADA Accessibility Guidelines (ADAAG) or the Uniform Federal Accessibility Standards {UFAS}. 28 CFR §35.151(c}; (appendix A #a 28 CFR Part 36}. FHWA encourages public agencies to use ADAAG. Under the ADAAG standards, an accessible design to a highway, street, or walkway includes accessible sidewalks and curb ramps with detectable warnings. 28 CFR §35.151{c} and {e} (curb ramps), ADAAG 4.3-4.5 (accessible routes), 4.7 (curb ramps with detectable warnings}, 4.29 (detectable warnings}. Continuously maintained sidewalks are required by the case of Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002}, cert. denied, 123 S.Ct. 2839 (2003). Accessible pedestrian signals and signs must be considered, with a reasonable and consistent plan to facilitate safe street crossings. 28 CFR §35.151 {c}; 23 U.S.C. §217{g)(2}. {9-12-06} Funding 30, What sources of funding maybe used fo comply with ADA and Section 504 requirements? Federal Funding Opportunities for Pedestrian Projec#s and Programs ACl TIVITY ~ NH ' S ST P HSI P' RH C T E CMA ' Q RT P FT A Tr E B RI . 40 2 PL A TCS P FL H BY ~ W SRT S Planestrian p * ~ ,~ ~ ~ Paved shoulders ~ ~ ~ _.__ -._~w - ,-- .., - .~..~ athlt ail se 1 _ ,~ _ _ ~ _ ~ _. ~ _ ~.'.~ . w _....~! 17BSIMOi3 36108 Page 1 ] of 27 ~ t, ~ Recreation ~ ,~ ~ * a! trail i .. ;Spot j improveme ~ '* ~` ~ * ? nt program ~. ~ i Maps * * --- -- -* -- -~--* -- ---~- ----..-_'._ ...%_._ 1 r-.-~ ~.. ....... . _ - __ _ i . ~ '~ ~ - --_ ~. _-_-~1 E Trail/highw ay * * .~ * w * * * intersection ;Sidewalks, new or * * * * * * * * retrofit I ~~___- Crosswalks. _ I ~ retrofit ~ 1 E j f i i _.. Signal improveme '~ * nts a ... - -: __ Curb cuts * * ,~ * * * * ;and ramps I _ ~ Traffic -- *- =-*- ---- * - - _ calming 1 ook Training w * w ~ w ~ * NHS National Highway System TrE Transit Enhancements STP Surface Transportation Program f3R1 Bridge {HBRRP} HSIP Highway Safety Impravemen# 40Z State and Community Traffic Safety Program Program RHC Railway-Highway Crossing Program #'t_A State/Metropolitan Planning Funds l7HE/MOt) 36108 Page 12 of 27 ,~ ,t TE Transportation Enhancement Activities TCSP Transportation and Community and System Preservation Program CMAQ Congestion MitigationiAir Quality Program FLH Federal Lands Highways Program RTP Recreational Trails Program FTA Federal Transit Capital, Urban & Rural Funds B~iP Scenic Byways SRTS Safe Routes to School 32. Each program has its own specific requirements and provisions. Further detaits on these sources of funding may be found in the following memo; Flexible Funding for Highways and Transit and Funding for Bicycle & Pedestrian Programs, February B, 2006, ak www.fhwa.dot.aav/heplflexfund.htm, (8-12-06} Maintenance 31. What obligation does a public agency have regarding snow removal in ifs walkways? A public agency must maintain its walkways in an accessible condition, with only isolated or temporary interruptions in accessibility. 28 CFR §35.133. Part of this maintenance obligation includes reasonable snow removal efforts. (9-12-06) 32. Whaf day to-day maintenance is a public agency responsible for under the ADA? As part of maintenance operations, public agencies' standards and practices must ensare that the day-to-day operations keep the. path of travel on pedestrian facilities open and.usable for persons with disabilities, throughout the year. This includes snow removal, as noted above, as well as debris removal, maintenance of accessible pedestrian walkways In work zones, and correction of other disruptions. ADAAG 4,1.1(4). identified accessibility needs should be noted and incorporated into the transition plan. (9-12-06} Criteria 33. What accessibility framing is available? FHWA has the following training courses available: 1. National Highway institute: Pedestrian Facility Design, Course Number 142045. See www.nhi.fhwa.dot.povltraininalbrows catalog.as~x,, and search for Course 142045, 2. Association of Pedestrian and Bicycle Professionals/FHWA: Designing Pedestrian Facilities for Accessibility. Sae www.aobp.ora or contact: Judy Paul at 809-249-0020. 3. Resource Cen#er Civil Rights Team: Designing Pedestrian Facilities for Accessibili#y. Contact: Deborah Johnson at 410-862-0089. 34. Where is information on the criteria fa be used in developing accessible facilities? The following list of documents contains resources from several agencies and organizations US Access Board: The Access Board is the Federal agency responsible for developing ADA design standards. The following publications on accessible pedestrian design are available on the Board's Web site at www.access-board.aov: o Accessibility Guidelines (ADAAG} o Notice of Availability of Draft Public Rights-of--Way Guidelines o Accessibility Guidelines Accessible Public Rights-af-Way Design Guide o Pedes#rian Access to Roundabouts o Detectable Warnings: Synthesis of US and international Practice a Accessible Pedestrian Signals o Advisory Committee Report: Building a True Community o Accessible Public Rights-of-Way DBEl1v10U 36!68 Page 13 of 27 t ~ I # ~ ~ ~ a Integacing Accessible Pedestrian Signals and Traffic Signal o Controllers Call 1-800-872-223, 1-800-993-2$22 {TDD) to order the US Access Board Video, Accessible Sidewalks: Design Issues for Pedestrians with Disabilities - o Program 1: Pedestrians who use wheelchairs o Program 2: Pedestrians who have ambulatory impairments o Program 3: Pedestrians who have low vision o Program 4: Pedestrians who are blind The Federal Highway Administration: Pedestrian documents and reports are available at www.fhwa.dot.govlenvironrrient/bikepedl~ublications.htm. A bicycle and pedestrian publications order form is at www.fhwa.dot.govlenvironmentlbii<egedlorder.htm. Research and best practices design publications on pedestrian accessibility: o Designing Sidewalks acrd Trails for Access, Part, !, A Review of Existing Guidelines, www.fhwa.dot.govlenvironmentlsidewalksl (electronic formats only: hard copies out of print). o Designing Sidewalks and Trails for Access, Part 11, Besf Practices Guide, www.fhwa.dot.goylerrviranmentlsidewaik2/(electronic formats only: hard copies out of print, HTML version Incorporates all the changes listed in the errata sheet: www.fhwa.dot. ovlenvironmentJbike edlerr .h m). o Design Guidance Accommodating Bicycle and Pedestrian Travel: o A Recommended Approach, A DOT Policy Statement on Integrating Bicycling and Walking into Transportation Infrastructure. o Manua! on Uniform Traffic Confrol Devices (MUTCD) provides the standards for traffic control devices and includes guidance on Accessible Pedestrian Signals, Chapter 4E. and Temporary Traffic Cantral Elements, Chapter BD. The MUTCD is available at http:flmutcd.fhwa; dot.gov. a Detectable Warnin s Memorandum (July 30, 2004). o Detectable Warnings Memorandum (May 6, 2002): FHWA and the US Access Board encourage the use of the latest recommended design for truncated domes. Accessible Pedestrian Signals o ~nthesis and Guide to Best Practices Web site -this Web site provides overall information on installation criteria and design considerations. o Synthesis and Guide to Best Practices Article -this article provides the latest recommended technical specifications for installing accessible pedestrian signals. 0 1=HWA Pedestrian and Bicycle Safety -includes pedestrian and bicycle safety resources. http:llsafety.fhwa.dot,govlped-,bikelpedlindex. htm. o FHWA Pedestrian and Bicycle Safety Research -provides information on issues and research related to improving pedestrian and bicyclist safety. www.tfhrc. ov/safet 1 edbikelindex.htm. Other DOT Web sites o U.S. Department of Transportation Accessibility Vyeb site -The Department is committed to building a transportation system that provides access for all Americans. See www.dot.gov/citizen servicesldisabilityldisability.htm[. o Bureau of Trans~sortatian Statistics {BTS), Freedom ko Travel, DBSMIOU 36108 Page 14 of 27 ~t (www.bts,govlpubiicationslfreedom~to travail), a report on the travel issues for people who have disabili#ies. Institute of Transportation Engln®ers. o Alternative Treatments for At-Grade Pedestrian Crossings (an informational repar# which documents studies an crosswalks and warrants used by various entities}. o I7E's Web site, www.ite.orglaccessiblel, has infarrnation an accessible intersection design, Electronic ~oafbox for Making intersections Mare ,4ccessibie for Pedestrians Who are Blind ar Visually Impaired Informational Web sites o Accessible Design for the 131ind: information and research an making travel safer and accessible for pedestrians with disabilities,. www.accessfarblind.ar . The Pedestrian/Bicycle Information Center (sponsored by FHWA): www.walkinpinfo.arg www. bicvciinginfo. org Definitions Accessible. Describes a site, building, facility, or portion thereof that complies with the ADA Accessibility Guidelines, (ADAAG 3.5) Accesslble Route. A continuous unobstructed path connecting all accessible elements and spaces of a building or facility. Interior accessible routes may inc#ude corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. Exterior accessible routes may include parking access aisles, curb ramps, crosswalks at vehicular ways, walks, ramps, and lifts. {ADAAG 3.5} Accesslble Space. Space that complies with the ADAAG. (ADAAG 3.5) Alteration. An alteration is a change to a building or facility that affects or could affect the usability of the building or facility or part thereof. Alterations include, but are not limited to, remodeling, renovafion, rehabilitation, reconstruction, historic restoration, resurfacing of circulation paths or vehicular ways, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. (ADAAG 3.5} Further, each facility ar part of a facility altered by, on behalf of, or far the use af, a public entity in a manner #hat affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered porkion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. {28 CFR §35.151 {b) Circulation Path. An exterior or interior way of passage from one place to another for pedestrians, including, but not limited to, walks, hallways, courtyards, stairways, and stair landings. (ADAAG 3.5) Designated agency. The Federal agency designated to oversee compliance activities for particular components of State and local governments. (28 CFR §38.104) Detectable Warning. . A standardised surface feature built in or applied to walking surfaces or other elements to warn visually DBfi/MOU 3614$ Page IS of 27 ' ~ ~ r 1' S i impaired people of hazards on a circulation path. {ADAAG 3.5} Dfscrlrnlnation. Denying handicapped persons the opportunity to participate in or benefit from any program or activity. (28 CFR-§35.149] Fac!lify. All or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal property located on a site. (2$ CFR §35.104; ADAAG 3.5} Maximum Extent Feasible. In alteration projects, an ADA-required accessibility improvement must be insta}led to the maximum extent feasible; that is, to the maximum extent technically, or physically, feasible. (ADAAG 4.1.6(1}(~) Public Entity. (1}Any S#ate or local government; (2) Any department, agency, special purpose district, ar other instrumentality of a State or States or local government. {42 U.S.C. §12131) Public Facility. A facility or portion of a facility constructed by, on behalf of, or for the use of a public entity subject to title II of the ADA and 2& CFR Part 35 or 49 CFR §§ 37.41, 37.43. (28 CFR §35.104) Public Use. Describes interior or exterior rooms or spaces that are made available to the general public. Public use may be provided at a building or facility that is privately or publicly owned. (ADAAG 3.5) Undue Burafen. In determining whether financial and administrative burdens are undue in making decisions program-wide in the transition plan, a public agency must consider ail of that public agency's resources available far use in the funding and operation of the service, program, or activity. (29 CFR Part 35, App. A, discussion of §35.150, ¶ 6) This page last modified on May 13, 2046 FHWA Home ~ Civi! Rights Home j Feedback ~ FHW~A United States Department of Transportation -Federal Highway Administration DBE/MOU 3b/08 Page 16 of 27 ATTACFIIiAENT B 20'i 0 Specifications SPECIAL PR®VISI®N Local Go~rernrr~ent 1 CDA 1 RMA INon-Standard Contracts Disadvantaged Business Entdrprise in Federal-Aid Construction Description. The purpose of this Special Provision is to carry out the U. S. Department of Transportation's (DOT) policy of ensuring nondiscrimination in the award and administration of DOT assisted contracts and creating a IeveE playing field on which firms owned and controlled by individuals who are determined to be socially and economically disadvantaged can compete fairly for DOT assisted contracts. If the Disadvantaged Business Enterprise (DBE} goal is greater than zero, Article A, "Disadvantaged Business Enterprise in Federal-Aid Construction", of this Special Provision shall apply to this contract. If there is no DBE goal, Article B, "Race-Neutral DBE Participation", of this Special Provision shall apply to this contract. The percentage goal for DBE participation in the work to be performed under this contract will be shown on the proposal. Article A. Disadvantaged Business Enterprise in Federal-Aid Construction. Policy. It is the policy of the DOT and the Texas Department of Transportation (henceforth the "Department"} that DBEs, as defined in 49 CFR Part 28, Subpart A and the Department's DBE Program, shall have the opportunity. to participate in the performance of contracts financed in whole or in part with Federal furids. The DBE requirements of 49 CFR Part 26 and the Department's DBE Program apply to this contract as follows: a. The prime contractor (Contractor) will solicit DB~s through reasonable and available means, as defined in 49 CFR Part 26, Appendix A and the approved DBE Program, or show good faith efforts to meet the DBE goal for this contract. b. 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 financially 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 Entity deems appropriate, subject to review by the Department. c. The requirements of this Special Provision shall be physically included in any subcontract. d. By signing the contract proposal, the Bidder is certifying that the DBE goal as stated in the proposal will be met by obtaining commitments from 4-9-207 0 I ~ I ~ 1~ ' i I eligible DBEs or that the Bidder will provide acceptable evidence of good I faith efforts to meet the commitment. The Entity will determine the adequacy of a Contractor's efforts to meet the contract goal, within 10 business days, excluding national holidays, from receipt of the information outlined in this 5peciak Provision under Article A.3, "Contractor's Responsibilities." If the requirements of Article A.3 are met, the conditional situation will be removed and the contract wil! be forwarded to the Contractor for execution. 2. Definitions. a. "Department" means the Texas Department of Transportation. b. "DOT" means the U.S. Department of Transportation, including the Office of the Secretary, and including the operating administrations, i.e. the Federal Highway Administration {FHWA), the Federal Transit Administration (FTA), and the Federal Aviation Administration (FAA). c. "Federal-Aid Contract" is any contract between the Texas Department of Transportation and a Contractor at any tier, or Entity and a Contractor at any tier which is paid for in whole or in part with DOT financial assistance, d. "Entity" means local government agency, CDA, MPO, RMA, Pass-Thru entity, etc. e. "DBE Joint Venture" means an association of a DBE firm and one (1} or more other firm(s) to carry out a single business enterprise for profit for which purpose they 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. f. "Disadvantaged Business Enterprise" or "DBE" means a firm certified through the Texas Unified Certification Program in accordance with 49 CFR Part 26 Subparts D and E. g. "Good Faith Effort" means efforts to achieve a DBE goal or other requirement of 49 CFR Part 26 Subpart C and this Special Provision which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirement. h. "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. "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 genera! 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. To be a Regular Dealer, the firm must, be an established, 'regular 2 4-9-2010 ,, ~~ ~ business that engages in, as its principal business and under its own name, the purchase and sale or lease of the products in question. A Regular Dealer in such bulk items as steel, cement, gravel, stone, and petroleum products need not keep such products in stack if it owns and operates distribution equipment for the products. Any supplementing of Regular Dealer's owri distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis. "'Brokers, packagers, manufacturers' representatives, or other persons who arrange or expedite transactions shall not be regarded as a Regular Dealer. *"Broker" is an intermediary or middleman that does not take possession of a commodity or act as a Regular Dealer selling to the public. j. "Race-neutral DBE Participation" means any participation by a DBE through customary competitive procurement procedures. k. "Race-conscious" means a measure or program that is focused specifically on assisting only DBEs, including women-owned DBEs. I. "Texas Unified Certification Program" or "TUCP" provides one-stop shopping to applicants for certification in their region, such that applicants are required to apply only once for a DBE certification that will be honored by all recipients of federal funds in the state. The TUCP by Memorandum of Agreement established six member entities, including TxDOT, to serve as certifying agents for Texas in specified regions. Applicants for DBE certification may be directed to the TUCP Internet site for mare information at: Ilwww.txdot.gov/businesslbusiness_outreachltucp.htm 3. Contractor's Responsibilities. These requirements must be satisfied by the Contractor. a. After conditional award of the contract, the Contractor shall submit a completed Form Na.SMS.4901, "DBE Commitment Agreement" for each DBE intended to be used to satisfy the DBE goal ar provide documentation of good faith efforts to explain why the goal could not be reached, so as to arrive in the Entity's contracting office not later than 5:00 p.m. an the 10t~' business day, excluding national holidays, after the conditional award of the contract. When requested, additional time, not to exceed seven (7) business days, excluding national holidays, may be granted based on documentation submitted by the Contractor. b. Contractors who subcontract with DBEs may receive credit toward the DBE goal for work performed by the DBE's awn forces and work subcontracted to DBEs. A Contractor must make good faith efforts to meet the goals. In the event a DBE subcontracts to a non-DBE, that information must be reported on Form No. SMS.4902. The completed form must be provided to the Entity with a copy to the TxDOT District Office responsible for overseeing the project. c.. A Contractor who cannot meet the contract goal, in whole or in part, shall make adequate good faith efforts to obtain DBE participation as so stated 3 4-9-2010 -and defined in 49 CFR Part 26, Appendix A. The following is a list of the types of action #hat may be considered as good faith efforts. It is not intended #o 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. Solici#ing through all reasonable and available means {e.g. attendance at pre-bid meetings, advertising, andlor written notices} the interest of al! certified DBEs who have the capability tv perform the work of the can#ract. The solicitation must be done within sufficient time to allow the DBEs #o respond #o i#. Appropriate steps must be taken to follow up initial solicitations to de#ermine, with certainty, if the DBEs are interested. 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 Contractor might otherwise prefer to perform the work items with its own forces. Providing interested DBEs with adequate informs#ion about the plans, specifications, and requirements of the contract in a timely manner to assist them in responding to a solicits#ion. Negotiating in goad faith with interested DBEs to make a portion of the work available to DBE subcontractors and suppliers and selecting those portions of the work or material needs consistent with the available DBE subcontractors and suppliers to facilitate DBE participation. Documentation of such negotiations 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 documentation as to why additional agreements could not be reached for DBEs to perform the work. A Bidder using good business judgment would consider a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm price and capabilities as well as contract goals into consideration. However, the fact that there may be some additional cos# involved in finding and using DBEs is net in itself sufficient reason for a Bidders failure tv meet the Contract DBE goal as long as such cost are reasonable. Also, the ability or desire of the Contractor #o perform the work of the contract with its own organization does not relieve the Bidder of the responsibility to make good faith efforts. Contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. 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 yr social affiliations {far example union vs. nonunion employee status) are not legitimate causes for the rejection or non-solicitation of bids and the Contractors efforts to meet the project goal. 4 4-9-20'I 0 © Making efforts to assist interested DBEs in obtaining bonding, lines of credit,. or insurance as required by the recipient or Contractor. ® Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. • Effectively using the services of available minoritylwomen commuriity organizations; minoritylwomen Contractors' groups; local, state, and Federal minoritylwomen business assistance offices; and other organizations as allowed on a case-by-case basis to provide assistance in the recruitment and placement of DBEs. fl If the Entity determines that the Contractor has failed to meet the goad faith effort requirements, the Contractor will be given an opportunity for reconsideration by the TxDOT Office of Civil Rights. d. Should the Bidder to whom the contract is conditionally awarded refuse, neglect or fail to meet the DBE goal or comply with goad faith effort requirements, the Entity can take remedial financial action as provided by the Entity's rules or practices. The Entity may refer to 43 TAC §9.56, as a guideline for creating rules or adopting practices, when the Entity does not have uniform rules or practices for non-compliance with the terms of its contracts. e. Ail contract and project information shall be submitted directly to the Entity with a copy to the TxDOT District Office responsible for oversight of the project. f. The Contractor shall not terminate for convenience a DBE subcontractor named in the commitment submitted under Article A.3.a. of this Special Provision. Prior to terminating or removing a DBE subcontractor named in the commitment, the Contractor must have a written consent of the Entity. Copies of ail documentation must be provided to the TxDOT District Office responsible to oversee the project. g. The Contractor shall also make a good #aith effort to replace a DBE subcontractor that is unable to perform successfully with another DBE to the extent needed to meet the contract goal. The Contractor shall submit a completed Form I~o.4901, "DBE Commitment Agreemen#," far the substitute DBE firm{s). Any substitution of DBEs shall be subject to approval by the Entity. Prior to approving the substitution, the Entity will request a statement from the DBE about the circumstances of its subcontract's termination. A copy of the completed form must be provided to the TxDOT District Office responsible for oversight of the project. h. The Contractor shall designate a DBE liaison officer who will administer the Contractor`s DBE program and who will be responsible for maintenance of records, reports, documentation of good faith efforts and contacts made to subcontract with DBEs. i. Contractors are encouraged to investigate the services offered by banks owned and controlled by disadvantaged individuals and to make use of these banks where feasible. 4. Eligibility of DBEs. 5 4-9-2010 ~. .~ a. The member entities of the TUCP certify the eligibility of DBEs and DBE ' joint ventures to perform DBE subcontract work on DOT financially assisted contracts. b. The Department maintains the Texas Unified Certification Program DBE Directory containing the names of firms that have been certified to be eligible to participate as DBE's on DOT financially assisted contracts. This Directory is available from the Department's OCR. An update of the Directory can be found on the Internet at httpalwww.dot.state.tx. uslbusinessltucginfo.htm. c. Only DBE firms certified at the time commitments are submitted are eligible to be used in the information furnished by the Contractor as required under Article A.3.a. and 3.g. above. For purposes of the DBE goal on this project. DBEs will only be allowed to perform work in the categories of work for which they are certified. d. Only DBE firms certified at the time of execution of a contract, subcontract, or purchase order are eligible for DBE goal participation. 5. Determination of DBE Participatipn. When a DBE par#icipates in a contract, only the values of the work actually performed by the DBE, as referenced below, shall be counted by the Contractor toward DBE goals: a. The total amount paid to the DBE for work performed with the DBE's own forces is counted toward the DBE goal. When a DBE subcontracts part of the work of its contract to another firm, the value of the subcontrac#ed work may be counted toward DBE goats only if the subcontractor is itself a DBE. Work that a DBE subcontracts to a non-DBE firm does not count toward DBE goats. b. A Contractor may count toward its DBE goal a portion of the total value of the contract amount paid to a DBE joint venture equal to the distinct, clearly defined portion of the work of the contract performed by the DBE. (1) A Contractor may count toward its DBE goal only expenditures to DBEs that perform a commercially useful #unction (CUF} in the work of a contract or purchase order. A DBE is considered to perform a CUF 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 CUF, 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 #or the material itself. A minimum of one CUF Pro'ect Site Review (CUFPSR} will be conducted by the Entity using Department Form 2182 on all DBE firms working on the project. A copy of the CUFPSR will be maintained for review by the Department Distric# Office overseeing the project. In accordance with 49 CFR Part 26, Appendix A. --- Guidance Concerning Good Faith Efforts, Contractors ,may make efforts to assist interested DBEs in obtaining necessary equipment,. supplies, 6 4-9-2010 materials, or related assistance or services. Contractors may not however, negotiate the price of materials or supplies used on the contract by the DBE, nor may they determine quality and quantity, order the materials themselves, nor install the materials (if applicable), or pay for the material themselves. Contractors however, may share the quotations they receive from the material supplier with the DBE firm, so that the DBE firm may negotiate a reasonable price with the material supplier. In all cases, Contractor or other non-DBE subcontractor assistance will not be credited toward the DBE goal, (2) A DBE does not perform a CUF 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. Consistent with industry practices and the DOT1Department's DBE program, a DBE subcontractor may enter into second-tier subcontracts, amounting up to seventy percent (70%) of their contract. Work subcontracted to a non-DBE does not count towards DBE goals. if a DBE does not perform or exercise responsibility far at least thirty percent (30%) of the total cast of its contract with its own work force, ar the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice far the type of work involved, it will be presumed that the DBE is not performing a CUF. (3J A DBE trucking firm who is certified as a DBE is considered to be performing a CUF when the DBE is responsible for the management and supervision of the entire trucking operation on a particular contract and the ,DBE itself owns and operates at least one (.1) fully licensed, insured, and operational truck used on the contract. (a} The Contractor receives credit for the total value of the. transportation services the DBE provides on a contract using trucks it owns, insures, and operates with drivers it employs. (b) -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. (c) The DBE may also lease trucks from anon-DBE firm, including from an owner-operator. The DBE who leases trucks from a non-DBE is entitled to credit for the total value of transportation services provided by non-DBE lessees not to exceed the value of transportation services provided by the DBE-awned trucks on its sub-contract. Additional participation by non-DBEs receives credit only for the fee or commission it receives as result of the Tease arrangement. Recipients that use this approach must obtain written consent from the appropriate DOT operating administration (FHWA in Austin). 7 4-9-2010 {cY} A lease must indicate that the DBE has exclusive use of and control over the trucks giving the DBE absolute priority for use of the leased trucks. Leased trucks must display the name and identification number of the DBE. (4) When a DBE is presumed not to be performing a CUF the DBE may present evidence #o rebut this presumption. c. A Contractor may count toward its DBE goals expenditures for materials and supplies obtained from a DBE manufacturer, provided that the DBE assumes the actual and contractual responsibility for the materials and supplies. Count expenditures with DBEs for materials or supplies toward DBE goats as provided in the following: (1) ]f the materials or supplies are obtained from a DBE manufacturer, count 100% of the cost of the materials or supplies toward DBE goals. {The definition of a DBE manufacturer is found at Article A.2.h. n# this Special Provision.) (2) if the materials or supplies are purchased from a DBE Regular Dealer, count fi0% of the cost of the materials or supplies toward DBE goals. (The definition of a DBE Regular Dealer is found at Article A.2.i. of this Special Provision.) (3) With respect to materials or supplies purchased from 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. Da riot count any portion of the cost of the materials and supplies themselves toward DBE goals. (4) 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 financially 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. d. If the Contractor chooses to assist a DBE firm, other than a manufacturing material supplier or Regular Dealer, and the DBE firm accepts the assistance, the Contractor may act solely as a guarantor by use of a two-party check for payment of materials to be used on the project by the DBE. The material supplier must invoice the DBE who will present the invoice to the Contractor. The Contractor may issue a joint check to the DBE and the material supplier and the DBE firm must issue the remittance to the material supplier. No funds shall go directly from the Contractor to the material supplier. The DBE firm may accept or reject this joint checking arrangement. The Contractor must obtain approval from the Entity, with review by the Department, prior to implementing the use of joint check arrangements 8 4-9-2010 ~i s ~, with the DBE. The Contractor should submit to the Entity, Joint Check Approval Form 2178 and provide copies of cancelled joint checks to the Entity upon request if the joint check arrangement is approved. No DBE goal credit will be allowed fiat the cost of DBE materials that are paid by the Contractor directly to the materia! supplier. e. No DBE goal credit will be allowed far supplies and equipmen# the DBE subcontractor leases from the contractor or its affiliates. No DBE goal credit will be allowed for the period of time determined by the Department that the DBE was not performing a CUF. The denial period of time may occur before or after a determination has been made by the Department. In case of the .denial of credit for non-performance of a CUF of a DBE, the Contractor will be required to provide a substitute DBE to meet the contract goal or provide an adequate good. faith effort when applicable. 6. Records and Reports. a. The Contractor shall submit monthly reports, after work begins, on DBE payments to meet the DBE goal and for DBE race-neutral participation. Report payments made to non-DBE firms. The monthly report is to be sent to the Entity with a copy to the TxDOT District Office responsible far oversight of the project. These reports will be due within fifteen (15) days after the end of a calendar month. These reports will be required until all DBE subcontracting or material supply activity is completed. Form No. SMS.4903, DBE Progress Report, is to be used for monthly reporting. Form No. SMS.4904, DBE Final Report, is to be used as a final summary of DBE payments submitted upon completion of the project. The original final report must be submitted to the Entity with copies to the TxDOT District Office responsible for overseeing the project and to the TxDOT Office of Civil Rights. These forms may be obtained from the Department or may be reproduced by the Contractor. The Entity may verify the amounts being reported as paid to DBEs by requesting copies of cancelled checks paid to DBEs on a random basis. Cancelled checks and invoices should reference the Entity's or Department's project number, as applicable. b. DBE subcontractors andlor material suppliers should be identified on the monthly report by Vendor Number, name, and the amount of actual payment made to each during the monthly period. Negative reports are required when na activity has occurred in a monthly period. c. All such records must be retained by the Contractor and the Entity far a minimum of three (3} years following completion of the contract work, and shall be available at reasonable times and places for inspection by authorized representatives of the Department or the DOT operating administration. The Entity shall provide copies of subcontracts or agreements and other documentation upon request by the DOT a~perating administration or the Department. d. Prior to receiving final payment, the .Contractor. shall submit Form No. SMS.4904. DBE Final Report. 1f the DBE goal requirement is not met, documentation supporting Good Faith Efforts, as outlined in Article A.3.c. of this Special Provision, must be submitted with the DBE Final Report 9 4-9-2010 ~' ~' ' f ' I' e. The Contractor shall provide the Entity with a certification of prompt payment, the Prompt Payment Certification Form 2177, to certify that all subcontractors and suppliers were paid from the previous month's payments and any retainage held was released for those whose work is compfete. The Contractor shall submit to the Entity the completed form each month and the month following the month when final acceptance .occurred at the end of the project and shall keep documentation of all such payments to produce upon request from the Entity, Department or DOT. 7. Compliance of Contractor. a. To ensure that DBE requirements of this DOT financially assisted contract are complied with,. the Department will monitor the Contractor's efforts to involve DBEs during the performance of this contract. This will be accomplished by a review by the Department of monthly reports submitted to the Entity by the Contractor indicating progress in achieving the DBE contract goal and by compliance reviews conducted on the project site by the Entity and by the Department, as needed. b. The Contractor shall receive credit toward the DBE goal based on actual payments to the DBE subcontractor. The Contractor shall notify the Entity if it withholds ar reduces payment to any DBE subcontractor and document the reasons for such action. The Contractor shall submit an affidavit detailing the DBE subcontract payments prior to receiving final payment for the contract. Copies of these documents will be provided to the Department's Area Engineer responsible for overseeing the project. c. Contractors' requests for substitutions of DBE subcontractors shall be accompanied by a detailed explanation which should substantiate the need for a substitution. The Contractor may not be allowed to count work on those items being substituted toward the DBE goal prior to approval of the substitution from the Entity, subject to review by the Department, d. The Contractor is prohibited from providing work crews and equipment to DBEs. DBE Goal credit for the DBE subcontractors leasing of equipment or purchasing of supplies from the Contractor or its affiliates is not allowed. e. When a DBE subcontractor, named in the commitment under Article A.3.a. of this Special Provision, is terminated or fails to compfete its work on the contract for any reason, the Contractor is required 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. .The Contractor shall keep documentation of good faith efforts to produce upon request by the Entity, Department or DOT. f. A Contractor's failure to comply with the requirements of this Special Provision shall constitute a material breach of the contract. in such a case, the Entity ar the Department, as appropriate, reserves the right to terminate the contract; to deduc# .the amount of DBE goal not accomplished by DBEs from the money due or, to become due the 10 4-9-2010 Contractor, or such other remedy or remedies as the En#ity deems appropriate, subject to review by the Department. Antic@e 13. Race-Neutral ®isadvantaged Business Enterprise Participation. 1. Policy. I# is the policy of the DOT that Disadvantaged Business Enterprises (DBE), as defined in 49 CFR Part 26 Subpart A, be given the opportunity to compete fairly for contracts and subcontracts financed in whole or in part with Federal funds and that a maximum feasible portion of the Department's overall DBE goal be met using race-neutral means. a, If there is no DBE goal, the DBE requirements of 49 CFR Part 26, apply to this contract as follows: The Contractor will offer DBEs as defined in 49 CFR Part 26, Subpart A, the opportunity to compete fairly for contracts and subcontracts financed in whale or in part with Federal funds. b. The Contractor and subcontractor(s) 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 financially 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 Entity deems appropriate, subject to review by the Department. 2. Reports. Race-Neutral DBE participation on projects with no DBE goal shall be reported on Farm No. 5MS.4903, DBE Progress Report and submitted to the Entity each month and at project completion. Copies of payment documents should be sent to the Department District Office responsible for project oversight. Payments to DBE firms are reported on Form No.5MS.4903 and are subject to the requirements of Article A.5, "Determination of DBE Participation." 11 4-9-2010 Attachment C ~ "~ ~lxwrtaLat Iwit~es~c~t ~ tinrtr~ ~~ w~~E ^ mil' app ~rdst+ie~a#~vri-dpr: yt~rnt~l~'r~i~las nrnrilt 3ta~rad•'lt~li ta4l~awin~; ~uu-ur: 17sr esaipisjnt~ ahdl nab d1~leEminae+a:on the 'i~w~ snd ~~ielpee Af ~ ~-~ aim cantr~a~t aor la t1r. ~Ittlpi+sxra#ign nt ifs Rris . ~ thR t~anitss~twstn dF 19 srnP sttaatl: '~fn awslpln-i's DOH pRa,{rnnrR as fad ~iD'1~": ~ iii irj* hre~i+~ [arihi~i sil~we~se impf~rnwitamus of dsl~ pne~arn !~ a eE~lsppn rnd ipisua m arty aut Et: Sierk{i 1 bR tt~MtYd Y ~ Y1if-RtiOd~ 0'l tttls rQesr~wet. t.7~pan notlfla#Rlorti to ttrs~ rs- afpUtaR ui iu ta~htrs m eariry asst Its ap- iu'~'~ R^~'+a++~ ~ DsPsirR~nant mfr lrrr= t~ tar rl!lbrsls~s unds~r'iR fi.&C. ~tlul andr or ~ Pra Fnuci his+li Raanadias ~4ct pt iiN fA YJ6S C 3IOt ~ ar~;l. ~ls} ~IytlEl ~anzr~ yast std stit#!t a c~onsr+Eeaor I(and ~~ subc~ttr~~ tha pP1rAa 40t rvJx1[ * iWlit~if~f1- tremor Itttltt bus trig ~2~wtn~ :~ ;-teruca: 7'hi eanttstetaf. sssh s~sRiilA~YSt of sstsbt~nn~ arat#orihrl! net difarlsnl ~ t'Isr6swlr a[ mfr, Isrtfana! oei~frs, lu ant ]xs ttir per• fOtUlillgl art this DCYRI'aC't. Tht CalRraitar thsi! c~rgr_oott ayplleablt~ ngaFmrrrnls of 1Y CPFt pp~a~t gibs the award and stdasGsirtraElots ct ISCT•adatad nasttneta. Failstta hY tM asntracaar ~ ~ wa: El+..a rpsrlrus.nts Is s~ roiterdat sxraets a~f gssl ara~eraoa wluah augr -eEnrto in the trrasituYtiasl of this tsns- trNet ert rusdt attar Irmsdy to dsa s*a1~9sns si.tnas appropetiei. P~ si tar arpssrll ~IWWIIOP nrttars ~~ ctts} aYrard rlltl idnsllllleasRilA riPiT•sRS~s~ FaBE/1VlOU 36!08 Page 27 of 27 CUTTA'6~oH"~Itl1E!!3~ ® ~' ®BE Program Compliance Guidance for Local Government Agencies ®VERVIE1rtf: The DBE Program as authorized by 49 CFR Part 2f ensures nondiscrimination in the award and administration of United States Department of Transportstion contracts. .The DBE Program applies to a Loeal Government Agency's highway contras#s, funded in part or whole, from federal funds received through TxDOT and the Federal Highway Administration (FHWA). A Local Government Agency (LGA) may use TxDOT's DBE Program thropgh a Memorandum Of Understanding (MOU). The MOU is the agreement that allows LGA's to use TxDOT's DBE Program and identifies the responsibility of each LGA as it pertains to DBE Program. DBE annual goals are established by the Business Opportunity Programs Office (BOP) for the department's DBE Federal-Aid Highway Construction Programs. Individual contract goals are established by LGA with input from the BOP Office. The BOP Office is responsible for administering the department's DBE Program, The BOP office, in conjunction with the LGA, will be responsible for monitoring the DBE Program and ensuring compliance. In an effort to effectively monitor the DBE Program, the DBE Program Compliance Guidance has been created and implemented. The LGAs wilt play a vital role in ensuring proper administration and compliance with the DBE Program. GENERAL DBE PROGRAM PROCE5S: Annually, BOP wilE develop an overall goal for DBE participation in projects receiving federal funds. The objective is to achieve as much of the goal through "race-neutral" means as practical. This means that DBEs wiE! participate in projects in the routine course of business and a specific project goo! will not be assigned. !f sufficient DBE participation is not anticipated through race-neutral means, "race-conscious" provisions are implemented and individual projects goals are assigned based on the availability of DBE firms to perform work within the scope of the project. In Fiscal Year 2005 and 2006, approximately one-half of the overall goal was achieved by race-neutral means. The most current version of the DBE Special Provision is included in the bid documents of all federally funded projects. The Provision is divided into race- conscious and race-neutral sections. Race-neutral projects do not have a specific project goat while race-conscious projects will have a minimum goal to be achieved by the contractor to assure compliance with the terms of the contract. The goal will be a percentage of the contract amount and is listed in the bid documents. For projects with a goal, the contractor must submit a list of DBE firms the contractor commits to use to fulfill the goal as stated in the DBE Special Provisions. Once approved, this fst forms the basis for project monitoring. The LGA monitors al! federally funded projects that have DBE work to be counted toward meeting the annual goal. Monitoring is similar for race-neutral and race- conscious projects, but additional steps are required on race-conscious projects when the contractor. does not meet the project goal or wants to substitute DBE firms for those listed in the contractor's commitment. A# the end of the project, actual DBE participation is totaled and credited to the annual goal for both race-neutral and race-conscious projects. Monitoring throughout the project gives assurance that credit is given for work accomplished in compliance with the specifications and statutes. DBE PROGRAM C{]MPl_tANCE GUIDANCE: There are three key documents used in implementation and management of the DBE Program.; the actual program as approved by FHWA, the current Special Provision to be included in all projects with federal funds, and a TxDOT Standard Operating Procedures Manual (SOP}. This SOP contains the following Sections: A. DBE Certification Program B. Withdrawal, Denial, Surrender, Decertification and Appeal Program C. Goal Setting, Counting DBE Participation, and Data Reporting D. DBE Commitments, Good Faith Efforts, and SubstitutionslRepiacements E. Joint Check Agreements F. Prompt Payment and Retainage Monitoring and Enforcement G. Commercially Useful Function Program Review H. DBE Third Party Challenges 2 SECTION A: DBE CERTIFICATION PROGRAM SECTION B: WITHDRAWAL, DENIAL, DECERTIFICATION, AND APPEAL PROGRAM PROCEDURES General. In regards to Section A and B, the LGA does not have any responsibility regarding the DBE Certification Program as it relates to certification, withdrawal, denial, decertification and certification appeal procedures. As such, Section A and B are not part of the DBE Program Guidance for LGA. Local Government Agency Procedures: The BOP Office and other TUCP Certifying Agencies have primary responsibility for all DBE certification actions. The LGA does not have any direct responsibility but may be requested to provide information or assistance to BOP or other TUCP Certifying Agencies regarding DBEs that are working on LGA federally-funded projects. The LGA must be familiar with the TxDOT Internet site www.dot.state.tx.us, TUCP Directory and use the information as appropriate for their monitoring activities. SECTION C: COAL SETTING, COUNTING DBE PARTICIPATION, AND ®ATA REPORTING General: BOP is responsible for developing TxDOT's annual goal far DBE participation in projects funded by FHWA. The annual goal is comprised of race- neutral and race-conscious participation. Far race-conscious participation, the LGA will assign a DBE goal for appropriate projects. Work completed by a DBE will be counted toward the overall goal if the work is actually performed by the DBE {i.e. the DBE performs a "Commercially Useful Function" {CUF}. CUF monitoring is discussed elsewhere in #his document. By special provision, the contractor must maintain certain records and submit certain reports. The contractor's records must be made available to LGA, TxDOT and FHWA on request. The following reports are submitted #o LGA: 7. DBE Program Cammifinent Agreement Form 2. DBE Monthly Projecf Report 3. DBE DBE/HUB Finai Report 4. Prompt Paymenf Certification Local Government Agency Procedures: ® Step 1 -Receive reports from the various sources and distribute as appropriate. The original of all reports should be kept with the official project records. ^ Step 2 -Verify the accuracy of DBE payments by comparing the DBE Monthly Progress Report to the Prompt Paymenf Certification. ^ 5tep 3 - Keep a running total of actual payments to DBE firms by entering information from DBE Monfhly Project .Report in subcontractors monitoring system. ^ 5tep 4 -Review the contractor's DBE DBE/HUB Fina! Report to ensure that DBEISBE contract requirements have been satisfied. 4 SECTION ®: ®BE COMMITMENTS, GOOI] FAITFI EFFORTS, AN® SUBSTITUTION REPLACEMENTS General: This Section does not apply to race-neutral projects. For projects with a specified percentage DBE goal, contractors make a commitment to meet the goal by signing the proposal and submitting a bid. Once the low bidder is determined and the contract is conditionally awarded, the contractor must submit a DBE Commitment Agreement Form or a Pre-Good Faith Effort Review. The DBE Commitment Agreement Form fists bid items and DBEs the contractor intends to use to fulfill the project DBE goal. The DBE Commitment Agreement Form is reviewed by the LGA to determine the appropriate DBE credit that will be allowed for each DBE., DBE Material Suppliers and Truckers have to provide the documentation at the time of cammitment that supports the level of DBE credit that will be approved for each DBE. The contractor submits aPre-Good Faith Effort Review if they believe they made every reasonable effort to do so but stilt cannot commit to meeting the goal. In either case, the form is submitted to the LGA for their action. During the life of the project, LGA monitors the contractor's progress toward meeting the goal.. If it appears #ha# the goal may not be achieved, the contractor must show that they made a Good Faith Effort (GFE) to meet the goal. If justified, the GFE is approved. The contractor may also request that a different firm be substituted for one named in the DBE Commitment Agreement Form. The BOP Office will conduct periodic reviews of the LGA's projects to ensure compliance with the DBE Program requirements. Local Government Agency Procedures: Contract award ^ Step 1 -- LGA receives appropriate submission from the contractor and renders final compliance determination. LGA wilt keep informed of any adverse issues encountered during their review and approval process. After all issues are resolved, LGA approves contractor's commitment, enters information into their subcontractor monitoring system, and notifies the prime, and the DBE of their approval. ^ S#ep 2 -Contractor assures that a copy of DBE cammitment Agreement Form or Notification of Compliance Letter is transmitted to the project personnel for inclusion in the project records and for use in monitoring during construction. Post GPE Review ^ Step.1 -Determine actual goal achievements at the end of the project by reviewing their subcontractor monitoring programs, the final estimate, and the Contractor's DBE/HUB Fina! Report. If the contractor did not meet the specified DBE goal, start Post GFE review by having the project personnel send-the contractor a Post Award GFE Information Request L.efter. ^ Step 2 --Assist the project personnel as requested in analyzing the contractor's documentation of GFE. ^ Step 3 -- If the contractor's GFE is deficient, notify the contractor in writing, giving the contractor an opportunity to appeal the determination and/or provide additional information. ^ Step 4 - Complete a Posf-GFE Review Report and prepare final disposition. Provide the BGP Office with a copy of the final disposition. SubstitutionslReplacements ^ Step 9 -Review documentation associated with the contractor's request. o DBE Commitment Agreement for DBE to be substituted. Assure that the contractor provides all of the information requested. o Written justificatiab from the contractor listing reasons the DBE is being substituted. ^ Step 2 -Verify accuracy of the contractor's documentation by discussing circumstances with the project personnel as necessary. ^ Step 3 - Request a written statement from the DBE acknowledging they are being replaced. Consider any additional information the DBE may offer. ^ Step 4 -Determine whether the contractor is in compliance with the DBE special provision. ^ Step 5 - Prepare a 5ubstifution Farm and send to the project personnel for approval. 6 ~, ~` SECT6®N E: J®iNT CHECK AGREEMENTS General: The contractor may choose to assist a DBE firm by acting as a guarantor#or payment of materials used by a DBE by the use of joint checks. To be eligible, the contractor must make joint checks available to all subcontractors and the DBE must agree to the arrangement. The contractor issues a joint check to the DBE and the material supplier and the DBE must issue the joint check to the material supplier. If approved by the LGA, this arrangement does not count against the DBE goal. Lora! Government Agency Procedures: ^ Step 1 -Project personnel receives DBE Jainf Check Approval from the contractor. Assist the project personnel in determining compliance with the Special Provision as requested. Project personnel sends signed Approval to the contractor by letter with copies to the DBE. ^ 5tep 2 -Compare the DBE Monthly Progress Report and Prompt Payment Certiflcafion Farm #or reasonable consistency. ^ Step 3 - Request a copy of cancelled joint checks for the months the contractor issued a joint check to each DBE with an approved DBE Jainf Check Approval. Review the joint checks to ensure that payment was processed through the DBE. ^ S#ep 4 - If two consecutive reviews for the same DBE show no discrepancies, the LGA may reduce the frequency of requesting copies of cancelled joint checks. ^ Step ~ -Submit compliance questions to BOP for assistance as necessary. 7 SECTION F: PROMPT PAYMENT AND RETAINAGE MONIT®RING AND ENFORCEMENT General: The contractor is paid for satisfactorily completed work every month through the monthly estimate process. This payment is for the work the contractor and all subcontractors perform. The contractor must pay subcontractors for the satisfactorily completed work within 9 0 days after the contractor receives payment far the subcontractors work from LGA. Retainage is an amount of money withheld to ensure that the contractor fulfills al! contract requirements, including submitting aN documents at the end of the project. Retainage normally ranges from 3% - 5% of the amount paid and is not released until the fnal estimate is processed. It is common practice for the contractor to withhold retainage from their subcontractors. However, the contractor must release the #otal amount retained when the subcontractor satisfactorily completes all their work an the project. Depending on the scope of the subcontract, this may occur long before all work on the contract is finished. Local-Government Agency Procedures: ^ Step 1 -The project personnel receives a monthly Prompt Paymenf Certification from the contractor before the end of the month following receipt of payment from the LGA: This certification is kept in the project records and will be used only far dispute resolution. ^ 5tep 2 -Assist the project personnel as requested in the event a subcontractor alleges they did not receive prompt payment from the contractor. The project personnel must have the complaint in writing. ^ Step 3 -During visits to the project site, randomly spot check whether certifications are received in the time specified. Take appropriate action if non-compliance issues are discovered. 8 SECTI®N G: C®MMERCIALLY USEFUL FUPICTI®N I~E!/IEVV PR®GIaAM General: Commercially Useful Function (CUF}, is the term used to describe a DBE's independence from the contractor. Over-reliance an a contractor brings a DBE's CUF into question. To perform a CUF, the DBE must be responsible for performing, managing,. and supervising the work under its contract. The DBE must also be responsible for negotiating prices for, ordering, installing, and paying for material used in its work. A contractor may only count the value of the work actually pertormed by a DBE toward the DBE goal. A DBE may enter into second-tier subcontracts, up to 70% of their contract. Work subcontracted to a non-DBE does not count towards the DBE goals. If the DBE does nat perform or exercise responsibility for at least 30% of the total cost of their contract with their own work force, it will be presumed the DBE is not performing a CUF and none of the payments will be counted toward the contract goal. The DBE Special Provision contains a discussion of when the contractor can count work by a DBE toward the goal. Local Government Agency Procedures: ^ Step 1 -For projects with a specified DBE goal, contact the project personnel to ensure there is a copy of the DBE Program Commitment Agreement Form on the project. ^ Step 2 -For all projects, ask the project personnel to forward a copy of all completed CUF On-Site Compliance Review Forms to the LGA. ^ Step 3 -Project personne! will conduct at least one CUF review with each DBE an the project. Their review is documented using a CUF On-Site Compliance Review Form and should be pertormed as soon as practical after the DBE starts work on the project. ^ Step 4 - PeriodicaNy review the DBE Monthly Progress Reporf to assure that the the initial CUF. review is conducted on the project irr a timely manner. Contact the project personnel to discuss delays in receipt of CUF reviews. Provide assistance to the projec# personnel as requested and as work schedule allows. ^ Step 5 -Project personnel should observe DBE work as part of their normal inspection function. If the DBE's practices change after the initia! CUF review, the project personnel should complete the CUF Project Site Review. ^ Step 6 -- Periodically visit the project site after CUF moni#oring starts. Discuss project personnel responsibilities and answer any questions the project personnel poses. As time allows, conduct a CUF review with project personnel and document using the CUF Project Site Review form. Explain "red flags" to project personnel to enhance their understanding of CUF. 9 ® Step 7 -Collect questions concerning CUF and submit to I_GA with supporting documentation for their action. EGA will document their determination and wilt transmit the final determination to the contractor and the DBE. Forward to the project personnel for inclusion in the project records. BOP will condact periodic reviews of projects to monitor the I_GA's compliance with CUF requirements. t0 SECTI®N H: ®BE TF"IIRD PARTY CHALLENGES General: Anyone has the right to challenge the eligibility of a DBE firm. The challenge must be in writing and contain information to support the challenge. Responsibility for resolving the challenge lies with the TUCP certifying agency that initially certified the DBE's eligibility. Local Government Agency Procedures: [] Step 1 -Forward any third party challenges received by the LGA to BOP. BOP will be responsible for identifying the appropriate TUCP certifying agency that wiEl handle the disposition of this challenge. 11 ~1'~J~CHMElVg E RE~iJIRtcd CONTRACT pROVISION$ FEI)ERAIT-AID CONSTRUCTION CONTRACTS Page L Gonerat ..... . . . . . ... .. - . ... 1 II. Nondlscrlminatton ................ . .. . . . .. . .. . t III. Nnnsagregaied FacillUsa ... . ........ . . . ...... ... 3 IV. Payment of Predetermined Minimum Wage ...... ... 3 V. Staloments and Payrolls .. .. .. .. .. , .. 5 VI. Record nt Materiala, Suppltes, and (.abar .... , .. , ... 8 V Il. Vllt. Suhletting or Assiggning the caniract . . . .... . .... Safely: Accident Pravenllan .. . .... .... .. . . ... 5 . . . 8 IX. X FaiBa Stalementa Concerning Highway t3ro)ects ... Im lemantatton of Clean AEr Act and Federal . 8 . p Walar Po[lutlon Control Aot ...... .... , , , . ... B XI, CertiCrcattan Regarding Debarment Suspensbn. l E Inetl ibllity, and Vo untary xclusion .. .. - . ~ - 8 XII. gcatton Regarding Use of Contract Funds for Cert Lobbying ................... ............. ... 8 ATTACHMENTS A. Employmenl Preference tar Appalachian Contracts {Included In Appalachian contracts aniy) !. GE (YERAL related suhconirads o! 510,090 or mare.) 1. E uaiEmploymentOpparlunity: Equaiamploymanlopportu- nity IsE~t)! requirements net to dlscnminala and to lake et$rmatlvo aclton to assure eqqusi opportunity as set forth urtdar laws, executive orders, raise, ragulatfana (2(i CFR 33, F9 CFR 183fl and 41 CFR t3fl) end orders of the Secretary o! Labor as math&ed b~yy the pravlsiona prescribed herehL and Imposed ppursuant W Z3 U.S.C. 14t) J;hall conslituta Ihs EEp and spp9cilic affirmative action standards for the Contracts'SprvlSCtaCtiviltesundgrlhisCGnlracl. ThalrqualOppporlu- nit Conslrucilvn Contrect Spectflcatlona set toAh under 41 CFR BO- 4.~and the provielona at the American Oisabllliiea AG of 18g9 {42 u.S.C, t2f0i a deg,) set tcrtfi under 28 GFR 35 and 29 CFR 1t139 are Incorporate by reference In this contract. In Itta axewtian of this wntract, the contractor agrees is campiy wHh the fallowing minimum specific requirement actlv(lfes of EEO: e. The contractor wilt work with the State h(ghway agency ISHA) and the Federal Government In carryingg out EEO obligatlane and In Ihelr review of blather actlvilles under tfiro contract, D. The contractor w111 accept as his operating policy the fo[lowing statement: 1. These caniract pravlatnns shell apply fv all work peAormed on iha contract by the contractor's own or~anlzatlon and with the assistance of workers under the eontractbr a immedfste supperlnten- denceand toall work performed on Iho contract by piecework, elation work, ar by subcontract. 2. Except ae otherwise provided }or In each aectlan, the canlraclor shalt insert In each subcontract ail of the slkpulaHans rsonlalned in these Roqutred Contract Provlslons, and further require their inelusivn In any tower ifer subeantracl pr purchase order that may (n turn bs made. The Required Gonlrecl Provlslons shalt Hat be Incorporated by reference in any case, The prime contractor shall ba responslofe Tor compliance by any aubeantraclor or tower tier subconlraclor with these Required Contract Provis[ona. 3. A breach of any of the aifpulallvns contained In these Required Gonlrecl Provlslons shall be sufEicienl grounds for terminaltan vl the contrast. 4, A breach of the tollow;np clauses of ttte Required caniract Provisions may also be grounds Ivr debarment as provided In 2Q CFR 5.i2: 5ecltnn I, paragraph 2; SeCHon IV, paragraphs 1, 2. 3, 4, and 7; Section V. paragraphs 1 and 2a through 2g. 3. Disputes arising out of Ihs labor standards proviakrna of 5ectlvn IV (except paragraph 5y and 5sction V of these Required Conlrac! Provlslons shelf not be ~ubllecl to the general disputes clsuae o[ Ihla contract. Such disputes st+aA be resafvad In accordance with the procedures ut the U.S. Department of Labor (DOL) as get rorth In 29 CFR 5, 8. and 7. OJaputes within the meaning ai 1 16 clause include dispulesbelwaen the contractor fvrany elite subcontreckora}and the contracting agency, [ha !701, nt 1ha contrectar'e employees nr lhetr rapresnnlatlves. 6. Selactlon of tabor; paring Ihs performance of this caniract, Irla COntraCl6f 9hBll Hal: a, discrirnlnate ag~insl labor frorn any ether &tate, possession, vrlerrttary ofiha united Stales (except lora~npJOymenlppreferenc~ for Appaladtlan contracts, when appl[cebla, a6 specified In Anathment A;.ur b. employ convict labor for any purpose vrithln the limits of the prnjert artless it is labor performed by eonvicls wife are an pa+4#e, supervioad release, or probalinn, IL NONDISCRIINIMiAT14N EApPJ+cable to all Federal aid corESlruclion contracts and to ap '9t is the pallcy of this Company to assure that applicants are emglaYed, and that employees are (rested during employment, without reg9ard to thalrracs, religion, Sex wlor, national origin, age of dtaebilAy. Such action shaft ~rtciude: employment, upgrading, demotion, or transfer; recruitment or recruttmanl adverilaing; IayoN ar termtnaffon; rates of ppayy or other !arms of cvmpensallon; and setaollan tar lre(n(nyy, Including appreniica• ship, preapprenttceshlp, andlar an•lhe lab training " 2. EEO pRlser: The contractor wll# deal Hate and make known to the 8HA contrecling oNieers an EEO O~car who wif! have the rasponlifbllltyforand muatbe capable of ettectWeiy adminlsleringand pramoiing an active contractor program of EEO and who must be assigned adequate authority and responsibility !o do sa, 3. DlsssiminrttonolPoflcy; Allrrtembarsotgtacontraclor'sstaft who are authorized to hire, supervise, promote. and dischargge employees, orwho recommend such actbn, or who are substanlfally Involved In such aclton, wilt ba made fully cvgnixanf of, end will implement, the tanlraclar's E:Et) poRoy and conUactual responatblll• Iles to provide EEO to each grade and classlficat(an of employment. To enswe That fhe above agreamentwiil Bernet, thetallawing actions will be taken as a minimum: a. Perfvdic meaHngs of supervisory and personnel nffirs amplyyeas will be conducted before Ihs alert of work' and then nql less often than ante every six months, at which lime the contractor's EEO pcllcy end %a Implementation wi11 bs reulewed and axptatned. The meetings wi[I be conducted by the EEO Offtcar. b. A(I new supervisory or peraonnei of<ce empioyves will bo given a Ihoiough indoctrlrlatfon bythe EEO Olftcer, covering all mater aspects of the contractor's El_O obligations wJltrin thirty days fnifowing their reporting for duty with the contractor. c. A(1 pperaonuvl who are anga4ad in direct recruilmen! for the protect will tJe Instructed b the EED Ofncar in th8 EOrNraGtor's procodares for locating and hiring minorNy group employees. d. Helices and posters aetltng Earth the cvnlreclor's EEO polity wilt be placed ll, areas readgy accessible to employees, apglicanls for employmonE and polendai employees. e. 'he contractor's ECO policy and the procedures Ic impte• irtanl such paitcyy wilt be brought la the attention of employees by means of rneelingg, employee handbooks, or oft+er appropriate rneans. 4 Rocrultment; When advertlsing far ernprvyees. the contractor will include irl aEl udvartisements for ernpleyeee the natation: "An Equal4pnortuntly Employer." All Such aovorllse+nents wll be platfld r]r+r F}i'NA-711 (ftev 3-9aj r,,a6 i !n pub#Icatianshaving a largeclrcuiation a+nong minoritygroups In the area from which the projset work force wauid normally be derived. a. Tha contraclar w11i, unless precluded by a valid bargaining agreement, conduct systematte and dlrec! recruitment through pubitc and private employee referral sources likely to yield qualNtad mrnodEy ggroup applicants. 7a Wrest Ibis raqutroment, fhe contractor will Idontlty sources of potential minority group employees, and estebltsh with such idenlili8d saurees pmcadures whereby minorlly group applicanismaybereferradtolhaconlractorforemploymenlconsldar- alian. b. In the aventthe Canlrador base valid bargaining agreamem providing for exclusive hlrlnq hall refer-ais, ha Is exppeded tanbserva the provisions ollhat agreemently Iha exlenl ihel thB system ermtts the coMFBCtor's compliance wllh EEO contract provisions, tThs I]t7L has herd Iha! where Implemenialbn of such agreements have the affect of discriminating agelnsl minorities or woman, or abllppetas the contractor to tlo the same, such lmplementadon violates Execullve Ordor 4 1248, as amended.) c. Thanoniraclorwillsncauragehispreeaniempployeastorsfer mtnority group appttCanta for employment, Intormatlon and prace- durea with regard to relerring mtnority group apptlcanta wilt ba discussed wish employees. 5. ParsonnetActions: Wages, workingcondillona.andempioyee Baneflls shall be aelabtibhed and administered,and personnel actlona of every type, Including hiring, uppggrading, promotion, transfer, demollon, layaN, and terminallan,~shall be lakan without regard to rata, color, religion, sex, natlvnai origin, age or disablllly. Tne following procedures shall ba foHawed: a. The contractor will conduct periodic inspections of project sites to insure that working condlllons and employee faeiligas do net indicate d€acdminalory trealmant at project alts personnel. b. Thecantraclorwlllperiodicatlyevaluatelhaspreadotwoeees paid within each classiflcalion to determine any evidence of discrlml- natory wage practices. c. Tha contractor will pariadicatiy review selected ppaersonnel actions fn depth to daterminewhelher there is evldenca of discrlmina- lion. Where evidence Is found, Ctrs contractor will ppromptly take corrective acllon. If the review toddicalea that Iha discriminatlon may extend beyond the actions revletved, such corrective ecllan shall Include alt aHacled parsons. d. The conlravtor will. promptly Investlg~ta all complaints of alleged dlsalminallon made to the contractor In annnecllnn with his oblEgationa,undar file canlract, will allampt to resolve such com- pfalnta, and wl ll take apppropriala correctvo acllon wllhln a reasonable time. If the InvvsNgation Indicates the! iha dlacrlrninatlon may affect porsona other than the complatnent, such Corrective action shall include ouch other persons. Upon ~omplellon of each Investlgalipn, the cantraotar wifi Inform every Complainant of all of his avenues of appeaE, t3. Training and Promotion: a. Tha contractor wilt assist In locating, quallfying, and increasing the skills of mtnority group and women employees, and applicants far employment. b. Conaistentwllhthacantractor'sworkforcerequiramenlsand as permissible under Federal and State regulat[ons, Ehe contraclar shall make full use of training programs, l.e., apprenllceshtp, and on•tha-job training pregrama for the geographlca area of contract pertormance, Where feasible, 25 percent of apprsntlces or trainees m each occupation shall be In their first year of epprenltCeahlp or training. to lira event a special pravistan far training is provided under this oantraet, ibis subparagraph will tre superseded as Indlsatod In lho special provlsinn. a. The contraclar wilt advise employees and applicsnts far emplayirrenl of avaHable (raining programs and entrance raqulre- :nESnis for each. d. Tha Contractor wit! periadicalty review the (raining and pramotlan pnlaMlal of minority group and women amployoos end wia encourage erigibla employees Iv apply for auto training and proma• Harz. 7. linlona: if [tie contraclar rpNas In whole or In pars upon unions as a source of employees, the contractor wilt use htrylher hea! efforts to obtain the coop[+retion of such unions 1p irrCreasa opportunilias for minority groups and women within the unlana, and to affect refarrefa by such unions of minority and female employees. Acllons by the contractor either direcNy or through a contractor's assoctaNon nding as aganl Wpl Incude the procedures set forth below; a. The contraclar will uas best efforts io develop, in coopera- tian with the unions, join! tralrtkrg programs almod toward qualifying more minority groupp members and woman for membership In Iha unions and Increaskng Iha skips of minority group employees and women ao that they may qualify far higher payhtg employment. b. Tha contraclar will use heal efforts to fncorgorale an EEC clause Into each union agreement to Hre end brat such union wtli be coniraclualiy bound Io refer applicants wilhoul regard to their race, color, religion, sex, national arlpin, age or dlsabNlty. c. Ttte Canlraclar la to oblein rntormalton as to the referral practices and policies nt the labor union exceppt that to the extent auvh Informallan is within the axcNatve possasaton of the labor union and such labor union refuses #a furnisfi such information to the contractor, the contractor shall sa sertl((yy io iha 8HA and obeli set (Drib what efforts have been made to obtain such information. d. In the avant the un[on la unable to provide the conlraCtor with a reeeonabla flow of minority end women referrals within the Ilme Ilmll sal forth In Iha coifactive bargaining agreement, the Coniractvr will, through Independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sett, nallonat origgin, age nr dtasblllt~r• making full aHorta to oblsln qualified andlar qquallfiabte minonly group persons and women, (The ©Ot, has held That it shall ba nD excuse Iha! the union with which the contractor hea a caNecllve barrggaining agreement providing for exCtuaive referral tailed to refer minority employees,} In the avenl the union relerrai praGice pprevents the contractor (ram meeling the obilgatians pursuant to ExecuBve Order f924ti, as amended and these special provisions, such contractor shall immediately nol~ty the SHA. 8. Sslactfonoi$ubconlractora,ProcuramentofMatarlAlaand Leasing of Equipment: The contractor shall not dlacrkminete on [he grounds of rata, color, reilgton, sex national ortgln, age or disability !n Iha seiecilan and retenl on of au~contrectora, including pracure- manl of matsrlats and lasses of equipment. a, The contractor shall notify aft potential aubcontractara and supplfara of hislhar EEO obilgatlons under ibis contract. b. olsedvanmged buelness antarprlses {p8>r), as defined 1n 49 CFR 23, shall have aqua! opportunity to oompets far and pertorm subconlracls which the contractor enters Into pursuant In this contract, The contractor wit! use hie beste(forta to sallelt bids tram and to utilize 178E sUbcantraatara or aubcontractara with meaningful minorlly group and female reproas,entallon among their employees, Conireclors ahail obtain Ilsta of QBE construction firma from SkA parson neE, c. The contraclorwitl use hla bestaflarts to ensure subcontraC- tar compgance with their EEO obfigalions. 9, fteeords and itepnrtta; The contraGor shall keep such records es necessary to document ~omphence wllh the EEO requirements. Such records shall be retained far a period of three years following compleitan of iha contract work and shall ba available at reasonable limes and pplaces for inspedion by authvrlred represenlatlves at the 5HA and the FHWA. a, Tha records kepi by the contractor shall document the fvilowfng: (1} Tne number of minorlly and non•minority group members and women employed In each work cleaslllCaUon an iha pro(vct; (2) The progr~se and efforts being made in cooperation with unions, when applicable, to increase employment opporiunflres for minarilfas and women: (3} Tha prapreas and eftans being made in locating, hiring. training, puailfying, and upgrading mtnorlly end female amptayaaa; and (A) Tiro progress and Mods being made !n assuring the services off pair subeantractara or subconlracfors with meaningtul minority end tamale represantadan among their employees. b. The rAntraclore wlH submik an annual report to the 5HA r'IIao z Farm FHWA•1273 (Rev. 3-84) each duly for She dutailnn of Iha pro]ecl, indica#ing iha number of minority, women, and non-minority group employees currently engaged in each wnrk ciassifrtaiton requhad by tfis contract work. This InfnrmaNon Is io be roported on Farm FtiWA-139 t. I} on-Iha fob training Is being required by special provision, iha contractor will o required to collar! and report tsalning dale. Ill. NQNSEGREBATED FACILITIES (Applicably to ail Faderat•ak1 constnrction contracts and to all relatod suhcanlracts of ~ 1D,DDD or more.) a. By submiasfnn of this bid, the execution of this canlract or subcontract, or the wnaummellon of Ibis materiel suppply agreement ar purchase ardor, as appropriate, Iha bldtlar, Federaf•aid construes lion contractor, subcanNaCtor, malarial supplier, or vendor, as appropriate, certifies that Iha 11rm does not maintain or provide for fls em loyeas any segregated fecBiNes at any of Its eslaWishrnents,and that ihs 4rm does not permit ifs emplnyeas to perform their services at any location, under its control, where segreg~led tacflfllas era meintalnad. The firm agrees that a breach of this certificatlon fs a vinlatlon of the EEO provlslona of this contract. Tha tkm further certif#es that nn employee wilt be denied arrays to adequate facllitias on the basis of sex or disability. b. As used in this certiflesfion, the term "segregated facillllea" means any wainnpp rooms, work areas, reelraonra antl washrooms, reslauranfs and nlhar eating areas, limaciocka, locker roams, and other stnrape or drssslnp areas, parking late, ddnking fauntaine, racrealiart pr antedafnmant areas, iranapartagan. and houatn9 facillNas provided for empioyeos which are eagregalad by explicit directive, or era, in fact, segregated on the baste of race color, rellglon; national arigln, ape ar disability, because of habit, local custom, or nihetwlse, The antyy excaptton wilt be for Iha disabled when the demands for aacesstlrltitY override (e.p. disabled parking), c. The conlreclor agrees Iha! h has obtained or will ablain Identlcel rertiRcatfon from pproposed subronlractora or maledal suppliers prier to award ai subcontracts or consummallon of malarial supply agreements of SiD,00D or mnre and that H will retain such certificattone in its tiles, IV, PAYtrtENT OF PREDETERMINEQ MINIMtJIH WAGE (Applicably la ail Fedora!-aid construction eonlracts exceeding 52,OOD and to sit related subcontraais, except far pro]ects located an roadways cfaesklfed aslocal roads or rural minor colieclora, which are exempt:) i. General: a. All mechanics and laborers employed or working upon the site of Ehe work will be paid uncondillanaily and not Iesa often then once a week and without subsaqquenl deducNan or rebate on any accaunl ]except such payratl dsductiona ae are permNted by regulallans {29 CFR 3 Issued hp Iha Secretary of Labor under Iha Copeland Act (40 V.S.. Z78c}] the full amounts of whesa end bane Ode fringge 6ensiNs (or cash equivalents Ihereoi) due al NmB of payment. Tha payment shalt ba computed at wags rates not Isla titan those canlalned in the wage delerminaffon of the Secretary at Labor (harelnafter"Iha wage dal8rminatfon") which Is attached hereto and made a part hereof, regarakaas of any contractual relationship which may be aNeged to axial between the canlraclor ar its subcan• tractors and such laborers and mechanics. The wage detarmfnatlon pncluding any addi#lonal cfassiflcatlons and waDye Tales conformed under paragraph 2 of ihla SaUlon IV and the D4L pester (WH-1321) nr Farm FHWA-1495) shall be posted at all ihnes by the contractor and #ts subcontractors at Iha site of !ha work in a prominent and accessibl~ptacowh~reltcanbeasaltys~enbytttew~rkers. Farlha pu~pase of IINa Section, conlributtons made or nark reaeonabiy anticipated far bona Ifde binge benefits under 3acllan i(6}{2} of the #]avls•Bacon Act(4D V.S.C. Z7t3a) an behaifaf laborers or mechanics ors cansfdsrod wagges pakl to such fabarers ar mechanics, subJact to tho provisions of 5ectinn IV, paraggraph 3b, hereof, Alsa, for Iha purpose of this Section, regular conlrlbulkrns made or coats Incu-red far more Ihan a weekly period (but net Isar often than quarterly} under plans, funds, ar programs, which cover Tits particular weakly per#od, era derrmad la be consln,ctluely made or Incurred duringp such weekly pperiod. Such laborers and mechanics shat! be paJd the aparopriata wage rate and fringe boneGts on the wage delerminatlnn for tho classification of work actually eerier+ned, wllhaut regard la sk111, except as provided !n paragraphs 4 and 5 of this 5eclinn IV. b. Labarars or rnechanlce perinrming work in more Than one classtllcation may be compensated at the rata specified for each clasaHicallon fdr the (lrrra acluslly worked Ihereln, pprovided, that the emptyyyer'a payroll records aecurataly yet forth the Eima spent In oeeh clessi0catlon in which work is performed. c All rulings and Inlar~rrelations of the Davis•3acon Act and related acts cantalned in 29 CFR t, 3, and 5 are herein Incprporated by reference in this canlract. 2. Ctaseiffcatioa: a. Tha SHA conlrecgng vDtcsr shalt require that any class of labarere or mechan(cs employed under the contract, which is not Hsted In !hB wappe deterrnlnation, shat! be classified in conlarmance with the wage determinstion. b. Tha conlractingoHfoershellapppraveanaddilbnalalessifica- iion, wage re!e and Hinge benefits,only when !hs following criteria have bean mat: (t) the work to l>8 performed by Iha eddlflonal classiftce- tian requested Is not performed by a ctaesillcaiwn In the wage detarminaNon; (2) the addillonaf Neselflcatton is utilized in the area by the constvudlan Industry: (3) the propnsedwage rate, Including any bona flda fringe trenetlls, beers a reasonable relalfonship to Ihewape rates contained In the wepa determination; and (4} with respect to helpers, when such a classitfcallon prevags In the area In whlcte Iha work Is pariormad. a If the contractor or auttconlractors, as appropriate the leharers and mechanics {If known} to ire employed In the addit~nna! claasiftcation or their rePresentetlvaa, and the contracling afltcar agree an the ClassRicatlon and wage rate {Including the arslounl deaignaled for iringa bensflts where apprypdate), a report of Nre action taken steal( ba sent by the contracgnp officer to the DOL, Adminlstrataraflhe Wage and dour plvlalon, Employyment Standards Adminlstradvn, Washington, D.C. 2D21D. Tha Wags end Hour Adminleirator, or an autttorized reprasentativa, wilt approve, modify, yr disapprove every additions[ cfassHlcation action within 3D days or resatppt endsoadvlae file oantraCtingg oglcer or wkfi notfy the oontract- ing offlcerwllhin the 30•day period Ihal eddhfonal t[me i8 necessary, d. In the event the eonUaeler or subcontractors as a roprl- ate, the laborers ar mechanics to ba employed in tote additional nlassEllcatton ar their repretanttstNas, and Iha contrecgng officer dp not agree on Iha prypoaed ctassl(Icatian and wage rate (Includfna the amount d~s((~~~at~d for Itinga beneflta, where appropr}ate}, the conlrecting officer shall refer fha grlestfone. fnciudtng Iha views of all Interested parties and the recommendation of Iha Cantracling officer, to the Wage and Hour Adm[nlslrator for detarminallon. Bald Adminisiratar, Oran authanzed repreaantagvp, wiN Issue a detsrmina- tlon wIINn 3D days of receipt and ao advise the contrecting ocker or will notify Iha t:anVacting officer within Iha 3D-day period that additional time Is necessary e. Titewaga rate (fnctud fringe benefits where apppropdata) determined pursuant to paragrep 2c or 2d of this Secgon IV shall ba ~~ld to alt warkera performing work In Iha addidonal classificaticn from the first day on which work is performed in the claaeKicatlon. 3. PaymNrt of Fringa Henafits: a. Whanevsrthemknimumwageratspreacribedlnlhacontract tar a clays of laborers or mechanics Includes a icings benaflt which Is Hat expressed as an hourly race, Iha contractor ar subcontractors, as appropriate, shall either pay lire benefit es staled in Iha wage daiermination or shall ppay another aona fide kings ttenagt or an hourly case equfvalenf thereof. b. If the contractor nr subcantrarlar, as appropriate, does not make payments In a trustee ar other third parson, helahe may canskfer as a part of th9 wages of any laborer or mechanic !hs amount o! any costs reasons#ly entfclpated In pproviding bona fide iringe benefits under a plan of program, prnvklad, that the Secretary of tabor flea found, upon the written request o! the contractor, 3haf (heapppllca6lastandardaofthaDavla-BaconAclhavebeenmet, The 3ecrelary of Lobar may require the contrrictar to sat aside In a separate account easels far the mestlng of obflgetiane under Iha plan or program. I:urm ~FtVVA-1273 IRev 394} Face ~ 4. ApprenUcee and Tralneoe {Programs of iha tl.S. DOL}and Helpers; a. Appranlicsa: {i) Apprentices vrlil be permitted to work at lass Than the predetermined rate far the work theyy performed when they era employed pursuant to and Indhridually registered In a bane nde apprenticeship program raglstervd with the OOL, Employyment and Training Adman st-atlon, Bureau of Apprgntlcsahlp and Training, ar with a Siate.appranticeshfp agency recognized by the Bureau, or if a parson Is amp oyed in lilslher flrat 8g dayys of protraffonary employ- ment as anapprentice in such en apprenllcashlp program, who is not indluidueliy re istared In iha program, but who has bean oartiiled by the Bureau ofgApp-entlcaship and Training or a State apprenllcashlp agency {where apprapriata} to be eligible far probationary employ- man# as an apprentice. (2) Tha allowable ratioaf apprentices to )ournayman•tavaf ampfoyees on the Job rile in arty craft classfflcallan shalt net ba greater than the ratio parmiUed to-the contractor as to the entire work rotes under the regtslered program. Any empioyea tasted on a payroll at an apprenttca wage rata, who is not registered or otherwise employed sa slated above, shalt ba paid not teas Ihan the applicable wage rata listed In the wage determination for the cleasUiCation of work aatuatly partomtad. In addigon, anyapprantica pertarming work an the Join alts In excess of the ratio parmilted under iha registered program ahail ba paid not fees Ihan iha applicable wage raie on the wage detarmfnal vn far the work aCluaily performed, -Where a contractor or subaonlraclor Is peHarmtng Conalructfon on a pproJea! in a iocallly ether than that in which Its program is registered,lha ratios and wage rates eexpresaed kn ppercentages of Ihs jaumayman•tavet hauriyrate}s eCritedinthecontractor'sarsubcontraclor'sregtslerad program sttalt ba observed. [3) Every apprentice must tae paid ai not lass then the rate specified in the re Iatsred progeram for the apprentice's lauel of progress, expressed as a pereenlaga of the Jaumayymandevet handy rate specified In the applicable wage determination. Appprangcea shall be paid fringe benefits in accordance with the provlsWna of the apprenticashlp pragram. If Ihs apprenticeship program does not specify fringe benefits, apprenllcea rriuat be paid the 4ult amount of fringe benefits tilled on iha wage delarminaUon far iha epppifcabta classlUcation. if the Admintslretor far the Wage and Hour Division daiarmtnes Thal a different practice prevails for the applicable apprentice classiticattan, Iringea shall bepaid Inaccordance with that determination. [4}Inthaeventthe BureauoFApprenticeshfpandTralning, or a Stale apprenllceshtp agency recognized by the Bureau, wllh- draws approval of an apprentk:eshlp rogram, the contractor or subcanlractorwitl no fnnger ba psrmlttedpo utitlzsapprentices al lase Ihan Ehe applicable predetermined rate far the comparable work performed by regular employees until an acceptable program is approved. b. Trainees: [ t) Except as provided In 2B C1=ft 5.16, iralneas will na! be permitted to work at Eesa Ihan the predetermined tale for tits work performed unleea they are employed pursuant to and lndfvldually registered in a program which has received prior approval, evidenced by formal certiflcalion by the DOL, Employment and Training Adminlsiratian. (2) The ratlnoflraineastoJournoyman-lavelemptoyeaaon Ihs Jvb ails shaft not ba grealar than permlHad under iha plan approved by the Employment and Training Administrallan, Any employee listed on the payroll at s Trainee rata who is not re$fatered andd panrcipatingg In a Iraln ng plan approved by the Employment and Training Adminislretlan shall be paid not lase than the applcable wage rate an the wagy determinatlan for the ciassificalion of work actually performed. In addition, any trainee performing work an Ina Job site In excess of the ratio permitted under the registered program snail be paid not Lass than the appiicabie wage rata on the wage dsisrminalton far Ina work aclualiy perfomed, (3) Every trainee must be std at opt teas than Eno raie specified In Tire approved progaram for hfalhor love( of pragraes. expressed as a percentage of iha Journeyman-ravel hourly rate specified In the applicable wage dvterminalian. Tre[nees shall be paid fringe benefHe In actardance wpb the provislpns of the iralnae program. If tho trainee program does noE msnllnn Uinge bvrrefits, #rabreaa sha[f be paid the full amount ai fringe benefits tie{ed on iha w~go datormtnatlan unless Ihs Administrator of the Waga and flour l]ivlaion dalamUnes that lhare Is an apprengceahlp program assaci- atad whh iha cornsp~nding journeyman-lava! wage rata an the wagge determination which pravldes for Igsa than full fringe banaills tar apprentices, In which case such trainees shalt receive the Same fdnge baneflls as apprenllcas, Uon withdrawsnaha oval taf eEtraiP~inment and Trelning Aaministre- ppr program, the contractor or subcontractor will nv longer ba permtted to utlEize tralnses al lass Ihan the appAcabte pradetermfnad rata for the work performed until an aocaptable program is approvetl. c. Helpers: Walpara will ba permitted to work on a pro}act if the helper classi[laatlon Is specified and daflned an Ihs eppUcable wage determination ar is apppproved pursuant to the conformance procedure set fnrlh In 3actian IV.2. Any worker listed an a payroll aE a helper wage rate, who la not a helper under a approved definliian, shall ba paid not leas than Ihs apptloable ways rate vn the wage determine• jinn for the c#assfflcaUOn of work actually performed. 5, Apprentices and TrrElneea (Programs o! the U,S, DOT}; Apprentices artd !ralneas working under apprenilceehip and skill tratninp programs which have been certified by the Secretary of Transportation as promoling EEO In cvnnacUon wllh Faderat•aid highway wnatructlan pr -tsrrta are oat subject to the requirements of paragraph 4 of this Seaton IV. The sUalghl time hourly wage raise farappranltr:esand lrakreea undarauch pragrama wNl ba estabtiahsd by the partfoular programs. Tha ratio of apprenibes and irainvas to Journeyman shall not be greater then parmUlad by the terms of the particular program. 6. tNlthholdlny: The SWA shall uppon Its own action or upon written request of an aulharized rapresenteltva of the DOL wlihhald, ar cause tv ba withheld, from Ihs Contractor or subcontractor under this contract or any other Fadaral cantrect wlih iha same prima canlractar, or any ether Federally-asslaied contract subject to Davis-Bacon prevalfing wage re u[remants which Is held by the same prime contractor, as much of the accn+ad payments or advances as mayy be oaneidered necessary to. pay labarars end mechanics, inciudlny apprenlicas, trainees, and hefpera, employed by the contractor or any euboantrac• !or iha foil amount o1 wages required by the contract. in the event oT (allure t0 pay any taborer or mechanic, fnGuding any apprenttca, trainee, or helper, em Toyed ar working on the alts of the work, elf ar partof ttrewagges roqutrad by the contract, the SWA contracting afflcar may. after wrfltan nalica to iha contractor, take such action ea may be necessary locausa the suspenalan of soy further payment, advance, or guarantee of funds unUf such viofaUona have ceased. 7. Overlima RaqulrsmenU: No contractor or subcontractor contracgng for any pars oitha contract work which may require or Involve the emptoymanl ai laborers, mechan[ca, watchmen, or guards (faeluding a prenUeea, Irainess, and helpers described to paragraphs 4 and 5 above) shall requl-e or permit any taboer, mechanic, walcnman, or guard In any workweek In which halsha to ernplayad on such work, !o work fn excess vl44 haute in euchworkwtrek unless such labora-, mechanic, watchmen, or guard receives campensatlon at a ralo not teas than one-and-one-half Mmes his/her basic rate o1 pay far ail hours worked In exactas of 40 hours In auch wodsweek. B. Vlokatton: t.iablNly for Unpaid Wages; Liquidated Damages: In iha event of any vlelatlan of the clause set forth in paragraph T strove, the contractor end any subcdntracior resporra[bls thereat shelf ba tlabl9 to iha affected empployee for hialhar unpaid wages. to addlllon, such contraator and su6cnntrectar shall be iiatslr- to Ihs United 5latea [in the teas of work done under contract for the Dlstricl of Cnlumtrla or a tarrHory, !a such District or to such territory} far liquidated damages, Such liquidated damapss shall be Compulad with respect !o arch Indfvtduai laborer, mechanic, wa~hman, m guard employed in viplattari of the clause eel forth in par~ppraph 7, In Ina sum of X90 for sacn calendar day on which auch employes was required or pe+mit- ted to wank In excess of the standard work week of a0 hours whhou[ paymsnl of the overtime wages required try iha clause set Farah in paragraph 7. 9. Withhofdtny Iqr llnpald Wages artd i.fquidated Damagae: P6ug4 i:o+m FHWA•i273 (Rev.3-94) Tha 5FiA obeli upon Its own acltan or upon wrlllen request of any authorized rapresentathre 4f the 17Oi- withhold, or cause to be withheld, from any monlea payable on account of work pstioRned 6y the contractor or subcontractor under any such cnntrec or any other E:edarar contract wNh the same prima contractor, or any other Fedora€lyassisled contract subject to the Contract Work Hours and Safety Standartls Aet, which is held by iha same prime contractor, such sums as may ba determined to be necessary to sagely any iiabilitlsa of such con#ractor or sullcantractnr fer unpaid wages and liquidated damages as provided in Iha clause set forth in paragraph 8 above. V. STATEMENTS AND PAYRtyLL$ {A Ilcable to all Federal-aid construction contracts exceeding 52,600 and to alt related sutxAniracts, except for prciects located on roadways classified a9 local roads ar rural collet ore, which era exempr,) 1. Camptiance with Copeland Regulations jx9 CFR 3): The contractor shall comply with the Copeland Regulatlona of the Secretary of Lobar which are herein incorporated by reference. 2. Payrolls and Payrot! Rscords: a. Payrolls and basic record6 relating thereto shall be maintained by the contractor artd each subcontractor during the course of the work and preasrvad for a period of 3 years Irom the data of completion of the contract for ail laborers, mechanics, apprenlicea, Eralnase, watchman, helpers, and guards working at the alto pf the work. b. The pa roll records abort contalnthe name, social ascurily number, and address of each such em Ioysa; his or her correct clasafficatlan; hcurlyy raise ofwaeas geld ~naluding rates aicontrlbu- bons yr coals antlcipatad for bona fide fringe beneflta or cash equivalent thereof the pas described in Section 1(b)(2){8) of She Davis Bacon Act); dai~r and weekly number of hours worked; deducttana made; end actual wagaa paid, !n artditlon, far Apppat~- ch4an contracts, iha payroll records shall contain a nvte4on Indicagng whether the employes does, or dose not, normally reskie kn the labor area as dellned in Attachment A, paragraph t. Vilhenever the Secretary of Labor, pursuant fo Secllan IV, paragraph 3b, has Iaund that the wagaa of any laborer ar meahanlc include the amount of any costs reasonably anUclpalad In providing beneiita under a pIan or preg ram descdbed to Section 1(b}{2){B) of the Davis Bacon Ac1,1he contractor and each subcontractor shall malntatn records which show that the commitment to provide such benefits is enforceable, titer the plan or program is financially rasponakble, that ttre plan or program has bean communicated In writing fv the labarera or mechanics affected, and show the coat anitclpated or iha actual cost incurred In providing benefits. Contractors or subcantraclors employing apprentices ar trainees under approved programs obeli ma€ntaln written evidence of iha reglatration of apprenltcss and trainees, antl ratios and wage rates prescribed In the epplicahle programs, c. Each contractor and subcrontractor shall furnish, each weak In which any contract work to performed, to Iha 5HA reatdanl engineer a payroll of wages paid each of i16 employees {including apprentices, trainees, and helpara, deaufbad in Section IV, ppara- ggrephs Aand 5, and watchmen and guards engaged on work rhrring khe preceding weekly payrafl partod). The payroll submitted shall sal out accurately and completely all of fhs information required to be malntafned under paragraph 2b of this Seclton V. This tnlvrrrralbn may be auhmilted In any form desired. OpRonal Form VJH-347 Is avatleble for ihts purpose and may be purchased tram the Superin- tendentof Documents (Padsra! stock number 029-005-0014-1 }, t).5. Government Printing ffiCS, Washington, D.C. 20402. The prime contractor Is responsible for the submisalan of copies of payrolls by all Buba4niraCtera. d. Each Payroll submitted shalt be acrompaniad by a "51ete- msnl of Campl:once," signed by the contrecior or subcontractor or htsrtrer agent who pays or suporvisas iha payment bi the persons smproyo under the contract antl shalt aertl iha foEtawfng: ffl that iha payroll for the psyroA psdod contains the iniarmatkon raqutred to ha maiMelned under paragraph 2h vt thla Section V and that such informa8an is correct and complete; t2) that such laborer or mechanic tlncludinQ each helper. apprenilce, and trainee) employed on the camraCl dunng the payroll period has t=eon geld the fu!! weakly wages aarnad, without rebate, either directly or indirectly, and Thal na deductions have been made either directly or indireally lrpm the full wages eamad, enter than permissible eduationa as sat forth In the Raguiallens, 29 CFR 3; {3) Iha! each laborer or mechanic has bean paid not leas that the applicable wage refs and fringe beneNts or cash equlualsnt tar fhs caasificailon at worked performed, as specUisd in the appllCeble wage determination incorpaaeted Into die contract. e. The weakly aubrrdsslon of a proppar~y executed csrtl(ICatlon sat forth an the reverse aide of Optional Forrrr VJH-3a7 shall satls(~r the requirement Ivr aubmisslon at the "Statement of Compliance' required by paragraph 2d ollhla SacUan V. f, Tha lalalflcaUon o} anyy of the above certtficaUons may subJacl the coniractot to c1vA or criminal prosacutlen under 18 U.S.C. 1001 and 31 U.5.C. 231. g, the contractor or subcontractor shall make the records required under paragraph 2b at this Section V avaltabis for lnepea- tlon, eopyingg, or iransur~tion by authorized representatlvas of the SHA, the FHWA, ar the Ot., and shall permit such repraaentel{vas to interview employsea Burins working hours on the Job. If the aontractor or subconlraclar felts to submit the required records ar fo make them avellabie, Iha SHA, the FHWA, the DOL, or alt may, aNer wrlllen notice to iha contractor, sponsor, appltcanl, ar owner, take such actions as may be rtsceasary to cause the suspenatan of any iurthar pflymsnl, advance, or guarantee of funds. Furthermore, tallura to submit Iha required rewMa u on -equeal ar to make such records ave3ahis may ba graund6 tar debarment action pursuant to 28 CFR 5.f2, Vi. RECORD OF MATERIALIir $UPPLIE$r AND LABOR 1. On all Fsderal•ald contracts on the Nalicnal Highway System, except those which provide solely for iha lnala9aUon of protecllve devlcea at ralUOad ppr~d~ aroaelnps, those which are conalrucled on a force atxountordlrecttahar basis, highwayy beauU9cafion cvnlrects, and contracs for which the total Bnat twnahucllon coal for roadway and bridge raises than 31,00D,000 (23 CFR 835) the contractor shall; a. Become famlUar with the list of epecl0c malerlate and supplies contained in form FHWA-47,'Statement of Materials and Labor Used by Cantractoro4FtighweyConstruction involving Federal Funds " prior to the commencement of work under This contract, b. Maintain a record of the iota! coat of all materials and auppl[ea purchased for and Incorporated in the work, and also of the qquantitlea of those speclgc materiels and supplEee listed on Form FHWA•47, end in Iha units ahuwn on Form FHWA-47. c. Fumish, upon the oompletlon of the eorttraci to the SNA reatdent engineer on Form FHWA-47 together with iha data required in paragraph th relative to materials and suppllea, a final labor summary of ail contract work Indicating the iota! hours worked and the total ami,unl carped, 2. At iha prima cantractols optlori, either a single report covering ail contract worker separate reports for the contractor and for each subcontract shall bs submttlsd. VII. SUBLETTING OR A$$if3NlHfi THE CONTttACT 1. Tha contractor shall perform with fls own orgartizallon contract work amounting to not less than 30 percent {a a greater percentage it specified elaswhara in the contract) of the total original contract pprice, oxcluding any apecfelly Items dsslgnated by !ha Slats, 5paclalty Items ma be performed by subrnn act and fhs amount of any such speclairy stoma performed rosy be deducted from fhs total original contract pprice before rAm uUng iha amount olwork required la be performed Ly the conireciosps awn arganizallon {23 CFR 635), a. 'Yts own organlxatian" shall be construed to Include only workers employed and pard directly by lira prime contractor and equipment owned or reeled by the prime contractor, with of without operators. Such farm Boas oat include ampioyaes or equipment of Form FI-fU~lA-!273{gev.5-94) r®o0s a subcontractor, asslgrtea, or anent of the prime contractor b. "Specialty llems° shalt ba construed to Efe limited to work chat requires flighty speelalized knowledge, eblllgas, or equlprnant no! ordfnarl{y available qt the type of contradtng organizations quaiifiad and expecied to bid on the contract as a whole and in general are to ha limited fa minor componanls at the overall Contract. 2, Tha contract amount trpon which Ifie requirements set toAh in paragraph 1 of Section VII Is oomputad includes thv cast of matodaf and manufactured products which era to ba purchased ar produced by the contractor under the conVacl provfalons. 3. The contractor shaft furnlah (a) a competent supperlntendant or supervisor who is employed by ilia firm, has full autfiority b dlreot performance of the work In accnrcianCe with Iha contract requfre- mants, and is In charge of alt eonatnrctfan oparalions (regardless of who perlorpts the work} and (b) such other of Its rswn orpanizailonat resources taupervislon, management, end engineering senrlces} as the SHA contraclinp oiticer determines Is necessary to assure the pa rformanca of the Contract. -0. No ortlofl ofths comracl Shah be sublet, aaslgned or atherwlse disposed of except with the written tansenl of the SHA cartiraciing officer, ar authorized representative. and such Consent when ggiven shall not be canatrued to relieve the contractor of an respansibltily for ilia tul6t4nent of the Contract. Written consent wtli be ppavan only after the SFiA has assured that each aubcantrad is evidenced In writing and that It contalna all pertinent prnviatona and rsqukaments of the prime conlrad• Vlli, SAf ETY: ACCIDENT PREVENTION 1. In the ppartprmance of flits contract the cantraCtar shall comply with ab applicable Federal State, and lapel taws goveminp safety, health, and sanitation (23 LtFR 83S). Thecontractnr shalt provld9 all safeguards, safettyy devices and protacllve equlpmart and take any other n9eded actEans es h determines, or a6 the 5HA contraciing otncer may determine, to ba reeaonaby necessary to protect the life and health of em Payees an iha job and the safety of the pputrtlc and to protect property in cannacllon with the performance of the work covered by iha contract. 2. I! Is a condition of this Canlrant, and shall be-made a condition of each aubconiract, which the conlractorentars Ihto pursuant to this contract, that the contractor and any subcontractor ahali not permh any employes, in periormance of the contract, to work In aurrountl- inps or under condiilnna whh aro unsanitary, hezerdcua or dannppar- oua to hialtier heahh ar aefe , as deiermined under canatructlar- safety and health slandarda~(28 CFR 1928} promulgated by the Secretary of Labor, fn acrArdance wfih Sectton 107 of the Contract Work Hcura end Safety Standards Act (40 U.5,C, 333}. 3, Pursuantio29GFR 1926,3, itisacondltionofihiacaniracllhal the 5eoretary of Labor or authorized represenlatlve thereof, shall have right of entry to any site of contras! pertormanoa to inspect or Investlpate the matter of compliance with the construction safety and health standards and to carryout the dultas of the Secretary under Section 107 of Ehe Gantract Wark Hours and Safety Standards Act (40 U.S.C. 333j. IX. FALSE STATEMt:NTS CONCERNING HIGHWAY PROJt:CTS In order to assure high quality and durable Construction to cantor- mlEy with approved plans and apecf6cationa and a high de rea of reliability on statements and repreasntallona made by eng~nsera, contractors, auppiiars, arrd workers on Fedarat•aid highway projects, it is essential that all parsons concerned with the prajact perform ihelr Junctions as carefuky, thoroughly, and honestly as posalbte. yVillful talsiffcatlan, distorttan, ar mlarepraesntatlan with reaped to any facts related to the pproject Is a violation of Federal law. To prevent any m[sunderstandhrg regarding the aerlausnesa of these and similar acts, the tollowinpp notice abaft be polled on each Fedarat-aid highway project (23 CFR 835) In ana ar more places where ft 1a readily available to all parsons concerned whh the project, NOTICE TO ALi. PERSONNEL ENGAGED ON FEDERAL-Aid HIC3HVtIAY PROdECT8 ttl U.S.C. 1020 reads es follows: 'Whpaver, boing an af!lcer, agent, ar emplayse of the Unrted Slafos, or at any State or Terntarq, ar who9ver, whafhor 8 Aersnn, assvc~iafran, firm, yr carporaf+an, azvingry nrekea any lase stata- mnnr, terse represenfafion, orfarse raparT as to the charanler, quality, quantify, or cast of ttte materaa! used or to be used, ar the quantityar quality of the wp-tr performed or to be performad, ar the case fherBOf rn Cannectfon with the submlasfon oI glens, maps, apecfficattans, contracts, or costa of Constrocllon on any higghway or related pmlect submitted far approval to the Secrofary of 'frensporiaflon; or tNPioavarxnowFnplymakes anytafse statement, false reprssenia- tlon, /stns report or false daim w fh rtaspect to the cAaracter, qualrty, quantity, w coat of any work performed or to ba performed, or matartats fumfahed ar to be hnnlshed, !n connection wrfh the construction of arty highway or related project approved by the Serxefary of Tranaportatlon; ar Whoavarknowinpry mekesany/alsestafement pr/afserepreaanta- lron as to material fact fn any statemanL cert~cate, or report submftfad pursuant to provtaians of the Fedora!-a!d Ro$da Acf approved JuFy f. tpiti, f39 9taf. 36tf}, as amended and suppla- mentad; Shall be h'ned net mare that S f 0,000 or imprisoned not mare than 5 years orbWb.° X. iMPLEMENTAT[ON 01= CLEAN AIR ACT ANR FEQERAL WATER POLLUTION CONTRQL AG7 (Apphcabla to all Fedarat-aid rAnalmctlon contracts and to all rotated subrontracte of 5100,000 or more.) By aubmisalan of this btd or the execution of This contract, or subcontrac6 as appropriate, the bidder, Federai•ald conslructfon contracor, ar subcontractor, $s apprapriala, welt be deemed to have slipulatad as follows: 1. Thal any facility that Is ar whl be uh6zed in Iha psrlormance of tats canlract, unteas each coniraCt is exempt under the Clean Atr Act, as amended (42 U,S.C. 1857 g~ ae as amended by pub.L, 91.804 , end under the Fedarai INalar t-~oElulion Canlrot Act, as amended (3 U,S.C,1261 g(~gq~, as amended by Pub,L, 92-SOQ , Executive Crdar 11738, and ragu~attons in implarxentaltan thereof ~40 CFR t 6) is not ilaied, on the date of contract award, on fire U.S. Envlronmanlal Protection Agency (EPA) Llsl Of Vioiaiing Faclhtlea pnrauani to aQ CFR 15.20. 2. That the flan agrees to Comply and remain In compliance with all the requiremsnte of Sectton 11d of iha Glean Alr Act and Section 308 of the Federal Water Pollution Control Alt end all repulallons and guldetinea listed Ihareundar. 3. That the #rm shalt promptly noiifv the SHA of the recefpl 01 any communlCatlon from the Qlrector, p ce of Federal Actlvtlles, EPA. indfcating that a facHlgr that is ar whl ba ullHzed for the caniract Is under conaideraHon to hs Itatsdon Iha EPA LIs1 of Vlalating Faciilties. a, That ilia Ilrm egress to Include or cause to ire Included ilia rsquhamants o1 paragraph 1 ihrouph 4 of Ihle 5sctlan x to every nohaxampt aubcoMrect, and Wrther agrees to take such aotlonaa the pavemmani may direct as a means of enforcing such raquiramants. xL CERTIFECATION REGARQINf3 DEBARMENT, SUSPEN810N, tNELt1~fBIE1TY AHD VOLUNTARY ExGLUBtpN 1, Inatructiona for Certiflcallon -Primary Covered Tranaac- tlans: (Appiicabte to all Fedarat-aid contracts - 49 CFR 29) a. 8y stgninp and aubmltting this proposal, the proapecllve primary participant [s providing the ceriHlcalfon sat out below. b. The inabllliy of a parson !o proutda the ceAlCrcehon sat out telow will not necessarily result in denial ct perliclpatlon in this covered iransaallnn, The prospective past ant shall submit en exptanat[on of why It cannot provide the Gatti Galion set out below. The certilleatton or explanation will ba eonslderad to cannactlon whh Iha dapertmenl nr agency's detesminallon whether to enter Into this Iransaahnn. However, fe6trre of the proapeclHe prknary partEClpant to furnish a certfllcetlon or an exptenatlan shelf dlaquslly suctr a person from participation In tMs transadlan. c. The cedhtcatlon In flits Clause is a malarial repreaeniatton of tazt upon wtr~h reliance was placed when the department or agency detarminad to enter krla-this transaction. it It la later deter mtnad that the prnsppeClH9 primary participant knowingly rendered an erroneous certiticatlan, In addiifon to Dlhar remBdkis avahabla to ihs Federal Government, iha department or agency may terminate this Nnpee Form FH4NA•1273 tRav. 3.9~t- iransactian for cause of datau€i. d. Tha prospecihre primary particlpanl shad praWda immediate written notice to the department or agency to whom this proposal is submhled !f any time the prospective primary participant learns That its certlAcatkon was erroneous when submNied or hae become erroneous by reason of changed circumslancas, a. TMa farms "covered transacllon ; "debarred," "aua~ended ; "ineligible," "lower liar caverad traneaClfon; ` "parllclpant;' person ; `prlmarycovaredlransactton,""prindpal,""propasaf,' and'vdwttanly excluded," as u¢sd to Ihfa clause, have dre meanings set out En the De(initlons and Coverage aactiana of rules Implamenibrg Executive Order 12549, You may contact the department ar agency to which this proposal is aubmtttad for aselslanca fn obtaining a copy of those ragutaHons. f. Thaprospactiuaprlmarypartlclpantapreesbysubnilll[ngthls prapa¢al that, should the proposed cavared Iran¢acEton ba entered info, tt shalt net knowtngty enter Into any lower Her covered transac- llon with a pparson who is debarred, auependad, dactan3d irtetigible, or vctunteriiy excluded tram pardclpatfnn in this covered transaction, unlaas su[horized by tfis department or agency entering into ihte transaction. g, The prospective primary participant further agrees by aubmitttng Chia proposal that Ikt will tncluda the clause titled "Certifica- tian Ragerdlnp pabarmanl. SubVensfan, Inallglblliiy and Voluntary Exclusion-E.ower Tler .Covered Transaclicn;' provided by the deparlmentar agency entering into this covered Uanaactlan, wNhoul madlficat€on, In all tower liar oovared Iransactlans and in ail saiiClEa- tionafor lower liar covered trensectlans. h. A participant In a covered transacllon may rely upon a csr110cagon ai a prospsaliv~ participant in a lower tier covered transacllon that is not debarred, suspended, Ineligible, or vatuntadiy excluded tram Hie covered Iraneactian, unless It knows hurt me certlbcatlon Is erroneous. R ppadtclpanl may dectda the maifiod and Irequency by which it determina¢ the ellglblRly of tta principals. Each participant may, but la oat re ulred la, check the nar+pracuremenl porllan of the "lists at Partiae Excluded From federal Procuramanl ar Nanprocurement Programs" (t+ronprocurament List) which Is complied by the Genarat Services Adminlslration, i. tJolhtng contained in the iorapolnp shall ba construed to require eatabllshmsnt of a system of racord¢ In order to render In good faith the ceruilcatlon required by this clause.- Tha knowledge and informatlan at partlctpen! is not required tc exceed that which la normally possessed by a prudent parson in the oMlnary course at business dealings. 1 Except far transactions au{harized under paragraph f of those Instructions, if a partEClpanl In a covered lransactton Knowingly enters into a lower 11ar covered iransactlan with a person who Ia auepanded, debarred, Inellgfble, or valuntadly excluded from pparliclppalbn In this lranaecllon, In addition to otherremedles available to the Fadaral Govamrnent, the department or agency may terminate this transacllon for cause or default. Csrtlficalton Regarding pebarmenl, Suspan¢lon, Ilralf~~Ibiiity and Voluntary Exclusion-•Prlmary Covered Transacltona 1. Ths prospective primary participant cenlirias to the bast of its knowledge and ballet, that it and Its principals; a, Are oat presently debarred, suspended, proposed for debarment, declared inellgibte, ar voluntarliy excluded from covered tranaactlone by any Federal department ar apancy; b. Have net within a 3-yyear parted preceding tfits proposal been convicted of or had a Ctvlt urdpement rendered against Ehem for commisafan at fraudlN a arlminel atfena@ In connadion with obtein- Inp, attempting to obtain, ar perform[ng a pubtic,(Federat, Stale or local) transaction ar contract under a public transaction; vtalallon of Federal ar Slate antitrust statutes ar cammisalon of embezzlement, theft, forrggery, bribery, felaiticat~n or destruction of records, making false statements, or receiving stolen property; c. ArenotpresanltyindlCtedfaroralhervriaecriminatlyorcfvllly charged by a govemmentak endly (Federal, State or local) with commission of any of ihs aHenaea enumerated In paragraph 1b of this ceriiflaation; and d. Have not within a 8 year parted preceding this applica- don! ropasal had one ar mare publtc treneactfons (Federal, State or bca~) terminated for cause or da(au It, 2. Wlrare the prvapectlve primary participant la unable to certify to anyal the alatamants in ihtecartlgcallan, ¢ucfi proapeclive partiolpant enall attach an axplenatlon !o this proposal. ..... 2. instructlonsforCertificatten-i.owerYisrCoveredTransaw ttons: (Applicable to all subtAritracla, purchase arder¢ and other lawar liar tran¢acllons of $25,000 ar mare - 49 GFR 2g} a. By sfgntng and aubmllHng this proposal, the prospective tower Iler is providing the certlAcellon eat out below, b, The cartHlcaBan In this clause is a materiel represantatlon of fact upon which reliance was D>aced when this transaction was entered Into. If It Is later determined that the prospactlva lower Her ppartic[pant krrowingty rendered en erroneous oedigcetton, in edditlan io other remedies avallebla to the Federal Government, the depart- man1, or sp~nccyy wlEh which Iriis irensaction ortglnated may pursue avatlabfa remedies, including suspenslonand/or deba-manf. c. The gprasppacliva tower Itar pparticipant shall pravlde immsdl- ate wr€tten notice Ia the person to which this ppropose! I¢ subm4ted ff a! any lima the prospective tower !tar participant !same that iia carllncadan was erroneous by reason of changed dreumafances. d. 1'ha !arms "covered Vansacilan;"'debarred," "sus~andad," °lneilgible;'prtmary wvered transacllon;' "paRiclpanl; 'person;' 'principal," "proposal," end "voluntad excluded," as used in this clause, have the maanings set aut In he Dednitiona and Coverage sections of rules Implementing t:xecutive t)rder i2t}48. You may cantaC! the par¢an to which this proposat is submitted forasslslance fn obtaining a copy of Iha9e regulallDns. e. The prospectlva lawar Ilex parllclpan! agrees by submitting fhta proposal that, should the propasad covered irensactlon be entered into, I! ahalE nai KnaWirtgty enter knto any tower flat oovered transacllon with a person wha Is debarred, suspended, declared inaliglbls, nr vafuntarlty excluded from parifcippatlon In this covered transacllon, unlaas authorized by Iha departrnenl ar agency with whkh foie transa"coon arfginaiad. 1, The proapsctive lower filer parHClpant Euriher agrasa by submlHhrg this propaaal that iiwlll includB this clause IIHed "Cerlirrca- Ifon Regarding [)eberment, Suspansbn, Ina ibillly and Voluntary ExcWslon-Lower Tier Covered Trensacllon," wr bout madHicatlon, In alt laver tier covered transactions and In all soi[citations for lower tier covered SransacUona. g. A participant In a covered transaction rosy rely upon a cortificatlan of a prospective partlGpanl in a Sower tsar Covered transacllod that Is not debarred, suspended. Ineligible, or uotuntarlly exatuded from the covered transaGion, unlaas kt knows the! the ctirtificErHon Is arroneous. A perticipanT may decide the method and 3'Orm FNWA-12 73 (tiev. 3-5d} ryas r frequency by which it determines tho ellglblllty al Its principals. Each pparilclpan! may, but Is not raqulred lo, check the Nvnprocuramant List. h. Nothing contained in the forepainpp shall ba construed to require astabllshment of a system of records in order to render in goad tattle Etas cerifflcatlon raqulred by Ibis clause. Tha knowledge and informalian of participant is not faqulred fo exc9ad Ihat whfah is normally possessed by a prudanl parson In thB ordinary caurae a€ business daaltnps. i. Except for transactions aulhorited under paragraph a o€ Ihea+) Insiructiana, if a participant In acavarsd Irenasaiion knowingly enters Into a lower liar covered Iranasction wllh a person who Is suspended, daba-rad, fnalfgfbla, or voluntarily excluded from particlppallan In lhi9 iransacllon,ln addiEtnn to nther remedies available is the Federal Government, the depertmanl ar agency wltlr wh~h this traneacltan ongginetad may pursue avalfable remedies, Including suspension andlordebarment. Certitfcatlon ReparrEing Debarment, Suspanafan, Inell®Ibllity and Votunlary Exatuston-•tawer'Ftar Covored Transaatlona: i. The prospective lawerliar particippant Certifies, by submtsslon of this propasal,lhat nallher it nor Its principals Is Rresently debarred, suspended, prepeaed for debarment, declared InaHggible, or volun- tariiy excluded tram parttclpation !n this transacNan by any Federal daparlment or agency. Z. 1Maare thB prospec#ive lower tier partlclpant is unable to codify to anY of the atalernenta In Ihia ceriiilcation, such Rrospective participant shall attach an axplanallon to this proposal. x11. CERTIFICATION fil'cl'aARP1HG USE OF CONTRACT FL1ND8 FOR L089YINt3 (Applicable to a9 Federel-ald conalrtacllon conlracls and to ail related aubcomrada which exceed S10tl,00D • 49 CFR 20) 1. 7ne prospective participant osAUles, by atpninp end submltllnpg thla bid or proposal, Eo the ball of his ar her knowledge and beHa(, that; a. Nr) Federal apppropriated funds nave bean paid or wHl be paid, by or an behalf aHhe undars~raad, to any peredn for Innusncinp ar attempting to InnuanCa an officer ar employee of a~y Federal agency, a Member of Congress, en ofHcar ar employee afCon rasa, or an employee of a Member of Congress 1n conneGlan w~ Iha awardln{~ of any Fedsrel contrast, the melono n! any FederaE gram, the makkl~ of any Fadaral loan, the entering rata of any cooperetlve agreement, and the extenalon, corttlnuallon, renewal, amendment, or modiflcallon cf any Federal canlra~at, grant, loan, er Caoperetive agreement. b, If any funds other than 1=ederaf apppropriated Arnda have been paid or wHl be paid to erry person tar Intfuancinp ar altamptinp to he8uence an otiHear or employyee of an Federat agency, s futambar of Canppreas, an otticcer or employee of Congress, or an employee of a MBmbaraf Can tees In conilectionwiththis 1=ederal contract, grant, loan, or caaperalPva agreement, Iha underalpnad shall umplate and submH 3tanderd form-LLL, "i.7iacfosure Forrri Ea Report Lobbying,' in accordance with Ifs InetruCllons. , 2. This eerilncation is a malarial represantatlon of tact u on which reHanco was placed when thlb Irsnsantlan wee made ar entered lnlo. 3ubmiselon of this Cerllflcatiarl Is a prerequisite farmaktng or entering Into this transactlan Imppsed Sbyyr 37 1i.3.C. 1392. Any parson who fails to nle flee raqulred Certiflcailon shall 6a subJact to a dull penalttyy of no! less than $1 O,DI3t1 end not more Haan f100,O1]D for each sotto failure. 3. The p rospecltve paHtClpant also agrees by submitling hie or her bid or prapoaek that he or she ahefi require that the language of this certlficallon be tndudad In all lower liar subcontracts, which exceed Stt)t),Qt10 and Ihat all sucn reclplsnte shalt certify and dlaclose accordingly. ~>aqa a Form FHWA-t273 lftav. 3-Rd) ATTACHMkENT A - EiNi'LQYA7ENT PREFEtiENCE FOR APPALACHIAN Cf3NTRAGTS {Applicable 1o Appalachian contracts only.) t . E]uring the performance of This contract, th8 contractor under- taking to do work wrrlch is, or reasonably may ba, done es on-site work, shall gkva preference b quatiliad parsons who regularly reside in the labor area as dealgrtaled y the UOL wherein the wntractwork is s ituated, or the aubreglan, of Gta Apppalachian counties of the State tvnereln the contract work Is sHualed, except: a. To the extent that qualified parsons regularly residing In the area are net avat{abta. b. f=or the reesnnabta needs of the contractor to employ supervksory orspecieily experienced personnel necessary In assure an eflicisnt execution of fhe contrast work. c. For the abllgatian of Ehe oentractor to offer errrptoyment to present or former amployya~s ss the resuk of a lawful Cohactiva barge€ningcontract. provided lhaliha numberofnanreatdent persons employed ender this subparagraph tc shall not exceed 2D ppercent nt Ehe total number of employees employed by the contreclor on the contract work, except as provided in subparagraph 4 below, 2. The contractor shell lace a Job order with Iha Stale Employ meet Service Indicating ~a) Iha clasafBcaiions at fhe labweis, mechanics and aihar employees required to pariorm the contract work, (b? the number of employees required In each clasairicalivn, (c) the dais an which he estimates such employees will be required, and (d! any other pertinentinformagon required by R-9 Stets Employ mart 3arv Ce to camptete the Jab order farm. 1"ho fah order may ba Iacad with the Slate Empkaymanl Servkca in writing ar by telephone. Pf during the course of the contract work, the infarmailCn submitted by iho contractor kt the orfgkial lob older ks subslantkally madltled, ha shall promptly nollfy the SIa1B Employment Sa+vica. 3. The mnlractor shall plea kill consideralton to all qualified ob appllcanla referred to him by 1hs State l"cmployrnent Service. rJhe wrro, In ore o inton, are nct quahtisd la psnorm ms cresefricanon nt work require . 4. N, within t weak fatlawing the pplacing of a ob order by Iha conlractorwhhtheSiate Employment 5ervics, Iha Ste Ernplnyment Service Is unable to refer any quaNied lab nppplIlCants to Iha rantrac• tar, ar 19se than the number requsalad, ifie State Employment Service will forward a cerHtlcate to Itt6 conNactor Indicating iho unavallabNl~tyy ofappllcanis, Such csrdlivate shall be made a pars of the cantrac(or's permanent project records. Upon receipt of This oarlNicate, ills contractor may employ persona who tlo not normally reside in the iabar area to flit pnattlons covered by the certificate, nohvithatending the pravksbris of subparagraph is shave. 6. The canlractar shall include Iha provisions of Sections 1 lhrcugh d of tuts Attachment A in every subcontract Far work which Is, ar reasonably may ba, done a9 an-she work. t=brm FHV::4~ f 273 (Rev. 3-r34) Pogo e Disadvantaged' Business Enterprise (DBE) Program (49 CFR 26) Department Transportation UPDATED JANUARY 2010 REVISED JUNE 2008 REVISED OCTOBER 1999 Policy Siaterrterrt Tt~:e Texas Departrent of Transpor#at~on (TxDOT) has es':ablished a Disadvantaged Business Enterprise 4.Dt3E) program in arcordance with- regulations ai the U.S. Department ai Transparta#ian (USDOTj, 4~3 CFR Part 2E. TxDOT has received Federal financial assistance from the Department of Transportation, and as a condition of receiving this assistance, TxDOT has signed an assurance that it will campiy with 49 CFFi Part ~6. It is the policy of TxDOT to ensure that DBEs, as de#ined in part 26, have an et~ual vppartunity to receive and participate in DOT-assisted contracts. It is also our policy tv: • ensure nondiscriminatior7 in the award and administration of DOT assisted contracts: • create a level playing field on which DBEs can compete fairly far DOT assisted contracts; a ensure that the DBE Program is narrowly tailored in accordance with applicable law; ensure that only firms that fully meet 49 CFR Part 26 efigibitity Standards are perriritted to participate as DBEs; • heip remove barriers to the participation of DBEs in DOT assisted contracts; and • assist in the developrnent of firms that can compete successfully in the market place outside the DBE Program. Nondiscrir~inatian Paticv TxDOT will never exclude any person from participation in, deny any person the bane#its af, or otherwise discriminate against anyone in conr~ectit~n with the award and performance of any contract covered by 49 CFA Part 2fi on the basis of face, color. sex, natinnat c~rir~in, ar~p Or diSabiGty, In administering its DBE program, TxDOT will not, directly ar through cvntractuat or other arrangements, use criteria or methods of administration that have the effec# of de#ea#ing ar substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, national origin, age or disabikify. TxDOT has disseminated this policy statement to the Texas Transportation Cotrrmissian and all the components vt our organization. Through the distribution of this DBE program, we have distributed this statement to DBE ar}d non-DBE business corx~munities that per#orm work for us on DOT-assisted contracts. ~ , ~ , j '~ ~ 1 Appointment mt DBE Liaison officer (DBELO) The Assistant f<xecgtive Director for Support operations has been delegated as the QBE Li3isan C]fficer. in that capacity, the Assistant Executive Director for Support Operations is respgnsible for irraplementing all aspects of the DBE program. Implementation ofi the DBE program is accorded the same priority as compliance with aff ether legal obligations incurred by TxdOT in its financial assistance agreements with the []epartment of Transportation. ~~ s f :~ Amadeo Saenz, P E. Date ~~_- .~ Executive Director Texas Repartment of Transportation DISADVANTAGED BUSINESS ENTERPRISE (DBE) PROGRAM TABLE OF CONTENTS SUBPART A-GENERAL REQUIREMENTS ....................................................... 4 Section 26.1 Objecti~es ........................................................................ . ....... . 4 Section 26.3 Applicability .............................................................................. . 4 Section 26.5 Definitions ................................................................................ . 4 Section 26.7 Non-discrimination Requirements ............................................. . 4 5ection 26.11 Record Keeping Requirements ............................................... . 4 Section 26.13 Federal Financial Assistance Agreement ................................ . 5 SUBPART B -ADMINISTRATIVE REQUIREMENTS ......................................... . 6 Section 26.21 DBE Program Updates ........................................................... . 6 Section 26.23 Policy Statement .................................................................... . 6 Section 26.25 DBE Liaison Officer (DBELO} ................................................. . 6 Section 26.27 DBE Financial Institutians ...................................................... ..8 Section 26.29 Prompt Payment Mechanisms ................................................ ..8 Section 26.31 Directory ............................................................... ...... ............ ..8 Section 26.33 Over-cancentration ................................................................. . 9 Section 26.35 Business Development Programs ........................................... ..9 Section 26.37 Monitoring and Enforcement Mechanisms .............................. ..9 SUBPART C -GOALS, GOOD FAITH EFFORTS, AND COUNTING ................ ..9 Section 26.43 Set-asides or Quatas ............................................................. ..9 Section 26.45 Overall Gaals ......................................................................... 10 5ection 26.49 Transit Vehicle Manufacturers Goals ...................................... 10 Section 26.51 (d-g) Contract Goals ................................................................ 11 TxDOT DBE Special Pra~ision and Bidder's Certification .............................. 11 Certification of Goal Attainment ................................................................... 11 Section 26.53 Goad Faith Efforts Procedures ................................................ 12 Demonstration of good faith efforts (26.53(a) & (c)) ....................................... 12 Information to be submitted (26.53(b)) .......................................................... 12 Administrative reconsideration (26.53(d)) ...................................................... 13 . Good Faith Efforts when a DBE is replaced an a contract (26.53(f)) ............. 13 Section 26.55 Counting DBE Participation .......:........... ,...,... ......................... 14 Use of Joint Checks ..................................................................................... 15 SUBPART D -CERTIFICATION STANDARDS ................................................. 16 SUBPART E - CERTIFICATION PROCEDURES .............................................. 16 Section 26.83 Procedures for Certification Decisions ....................~................ 18 SUBPART F -COMPLIANCE AND ENFORCEMENT ....................................... 17 5ection 26.109 Information, Confidentiality, Cooperation and Intimidation or Retaliation ....................................................... ................ ............................. 17 ATTACHMENTS .......................................................................................... 18 i , 4 ~ ~ ~ , Sl1BPART A -GENERAL REQUIREMENTS Section 26.1 Objectives The objectives are found in the policy statement on the first page of this program. Sectli®n 26.3 Appiicability TxDOT is the recipient of federal airport funds authorized by 49 U.S.C. 47101, et seq; TxDOT is the recipient of federal -aid highway funds authorized under Titles I and V of the Intermodak Surface Transportation Efl=lciency Act of 1991 (ISTEA), Pub. L 102-240, 105 Stat. 1914, Titles 1, III, and V of the Transportation Equity; Act for the 215tCentury (TEA-21, Pub. L 105-178, 112 Stat. ~ 07. SAFETEA-LU, P.L 109- 59; TxDOT is the recipient of federal transit funds authorized by Titles I, III, V, and VI of ISTEA, Pub. L. 102-240 or by 1=ederal transit kaws in Title 49, U.S. Code, or Titles I, ll, and V of the TEA-21, Pub. L 105-178. SAFETEA-LU, P.L. 109-59 Section 26.5 De#initions TxDOT will adapt the definitions contained in Section 26.5 for this program. Section 26.7 Non-discrimination Requirements TxDOT will never exclude any person from participation in, deny any person the benefits of, ar otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR Part 26 -Attachment 1 on the basis of race, color, sex, or national origin. In administering its DBE program, TxDOT will not, directly or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE program with respect to individuals of a particular race, color, sex, or national origin. Section 26.11 Record Keeping Requirements Reaortingto DOT: 26.11~b? We will report DBE participation to DOT as follows: We will submit annually The Uniform Report of DBE Awards or Commitment and Payments as modified for use by FAA recipients [as amended 68 FR 35556, dune 16, 2003]. 4 r We will report on asemi-annual basis The Uniform Report of DBE Awards or Commitment and Payments as modi#ied for use by FHWA [as amended 68 FR 35556, .June 16,2003]. We will report on asemi-annual basis The Uniform Report of DBE Awards or Commitment and Payments as modified for use by FTA recipients [as amended 68 FR 35556, June 16, 2003]. These reports will reflect payments actually made to DBEs on DOT assisted contracts. bidders List: 26.11(c) TxDOT will create a bidders list, consisting of information about all DBE and non-DBE fiirms tha# bid or quote on DOT-assisted contracts. The purpose of this requirernent is to allow use of the bidders list approach to calculating overall goals. The bidder list will include the name, address, DBE non-DBE status, age, and annual gross receipts of firms. We will collect this information in the following ways: The TxDOT Bidder's list consis#s of firms that include highway construction prime contractors, professional service providers and subcontractor and material suppliers. Subcontractor and material supplier information is supplied by the low bid Prime Contractor. TxDOT Bidder's List data was developed from contractors who have submitted bids on highway construction contracts. In the contract proposal, the low bidder, prior to award of the contract, is required to submit bidders information they received for the project. The Bidder's List also contains data from DBEs that submitted bids for construction and professional service contracts and from the DBE Commitments and Awards made. Section 2G.'13 Federal Financial Assistance Agreement TxDOT has signed the fallowing assurances, applicable to all DOT-assisted contracts and their administration: Assurance: 26.13(x) TxDOT shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT assisted contract ar in the administration of its DBE Program or the requirements of 49 CFR part 26. The recipient shall take al[ necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of DOT assisted contracts. The recipients 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 TxDOT of its #ailure 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 1 S U.S.C. 1001 andlor the Program Fraud Civil Remedies Act of 1956 (31 U.S.C. 3801 et seq.). This language will appear in fnancial assistance agreements with sub-recipients. Contract Assurance: 26.13b We will ensure that the following clause is placed in every DOT-assisted contract and subcontract: The contractor, sub-recipient, or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract ar such other remedy as the recipient deems appropriate. This information is included in the DBE Special Provision 000-461 1.A.1.b. -Attachment 2. SUBPART B - ADMINISTRATtVE REQUIREMENTS Section 26.21 DBE Program Updates The Department provides U.S. DOT with updates representing significant changes in the program as they occur. The department understands that all changes must be approved by FHWA, FTA, FAA prior to implementation. Section 26.23 Policy Statement The Policy Statement is elaborated on the first page of this program. Section 26.2v DBE Liaison Officer {DBELO) The Assistant Executive Director for Support Operations has been delegated as the DBE Liaison Officer. In that capacity, the Assistant Executive Director for Support Operations 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 TxDOT in its financial assistance agreements with the Department of Transportation. In that capacity, the DBELO is responsible for implementing all aspects of the DBE program and ensuring that TxDOT complies with all provision of 49 CFR Part 26. The DBELO has direct, independent access to the Executive Director concerning DBE program matters. An organizational chart -Attachment 3 displays the DBELO's position in the organization. The DBELO is responsible far developing, implementing and monitoring the DBE program, in coordination with other appropriate officials. The DBELO has a staff of 17 to assist in the administration of the program. The du#ies and responsibilities of the DBELO and staff include the following: 1 Gathers and reports statistical data and other information as required by DOT. 2 Warlcs with all departments to set overall annual goals. 3 Ensures that bid notices and requests for proposals are available to DBEs in a timely manner. 4 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). 5 Participates with the Division Directors and District Officials to determine contractor compliance with good faith efforts. 6 Analyzes TxDOT's progress toward DBE goal attainmen# and identifies ways to improve progress. 7 Participates in pre-bid meetings. 8 Advises the Executive Director and the Texas Transportation Commission an DBE matters and achievement. 9 Chairs the DBE Liaison Committee. 10 Participates in pre-bid meetings. 11 Provides DBEs with information and assistance in preparing bids, obtaining bonding and insurance. 12 Plans and participates in DBE training seminars. 13 Certifies DBEs according to the criteria set by DOT and acts as liaison to the Uniform Certification Process in Texas. 14 Provides outreach to DBEs and community organizations to advise them of opportunities. 15 Maintains the Texas Unified Certification Program (TUCP) updated directory on certified DBEs. 7 Section 26.27 DBE Financial Institutions It is the policy of TxDOT to investigate the full extent of services offered by financial institutions awned and controlled by socially and economically disadvantaged individuals in the community, to make reasonable efforts to use these institutions; and to encourage prime contractors on DOT-assisted contract to make use of these institutions. We have made a thorough search for financial institutions owned and controlled by socially and economically disadvantaged individuals iri the State of Texas and were unable to identify financial institutions meeting the requirements of Section 26.27. Section 26.29 Prompt Payment Mechanisms TxDOT will require prime contractors to pay subcontractors for satisfactory performance of their con#racts as specified in the Special Provision 009-007 Measurement and Payment -Attachment 4, which is included in a!I federal-aid contracts. in regards to the prompt pay full payment of retainage, TxDOT has adopted option 2. TxDOT will decline to hold retainage from prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage held by prime contractor to the subcontractor as specified in Special Provision 009-007 Measurement and Payment-Attachment4. [68 FR 35553, June 16, 2003] Section 26.31 Directory TxDOT maintains a directory identifying all firms eligible to participate as DBEs. The directory lists the firm's name, address, phone number, date of the most recent certifFCation, and the type of work the firm has been certified to perform as a DBE. We revise the Directory on a weekly basis. The TUCP Certifying Partners agree that TxDOT will serve as the TUCP directory manager. The directory manager will be responsible for the following actions: • Input all data and make any corrections, additions andlor deletions upon receipt of information from the Certifying TUCP Partners; • Maintain and keep the DBE directory current; • Make the DBE directory available to al! TUCP Partners and other interested parties; s ~ ~ 1 ~ , ~ 1 Maintain the TUCP directory website at www.dot.state.tx.us see Attachment 5 for sample. Section 26.33 Over-.concentration TxDOT has not identified that over-concentration exists in the types of work that DBEs perform. Section 26.35 Business Development Programs TxDOT has established a business development program. Section 26.37 Monitoring and Enforcement Mechanisms TxDOT will take the following monitoring and enforcement mechanisms to ensure compliance with 49 CFR Part 26: Monitoring Mechanisms-To ensure that DBE requirements of the DOT assisted contract are complied with, the Department will monitor the Contractor's efforts to involve DBEs during the performance of the contract. This will be accomplished by a review of monthly reports submitted to the Area Engineer by the Contractor indicating his progress in achieving the DBE contract goal, and by compliance reviews conducted on the project site by the Department. The DBE Special Provision 000-461 -Attachment 2 is included in all federal-aid projects and outlines the monitoring mechanism for compliance with 49CFR Part 26. Enforcement mechanisms- A Contractor's failure to comply with the requirements of the DBE Special Provision 000-461 -Attachment 2 shall constitute a material breach of the federal-aid contract. In such a case, the Department reserves the right to terminate the contract; to deduct the amount of DBE goal not accomplished by DBEs from the money due or to become due the Contractor, or to secure a refund, not as a penalty but as liquidated damages to the Department or such other remedy or remedies as the Department deems appropriate. [As amended at 65 FR 6$951, Nov 15, 2000, 68 FR 35554, June 16, 2003] SUBPART G -GOALS, GOOD FAITH EFFORTS, AND COUNTING Section 26.43 Set-asides or Quotas TxDOT does not use set-asides or quotas in any way in the administration of this DBE program. 9 Section 26.45 ®veralt Goals In accordance with Section 26.45(fj TxDOT will submit its overall goal to DOT an August 1 of each year. Before establishing the overall goal each year, TxDOT will consult with women's and general contractor groups, community organizations, and other officials or organizations which could be expected #o have information concerning the availability of disadvantaged and non-disadvantaged businesses to obtain information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and TxDOTs efforts to establish a level playing field for the participation of DBEs. Following this consultation, we will publish a notice of the proposed overall goals, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at our principal office for 30 days following the date of the notice, and informing the public that TxDOT will accept comments an the goals for 45 days from the date of the notice. The notice is published on TxDOT's website, newsletter, newspapers, available minority-focus media, and trade publications. Normally, we will issue this notice by June 25t~' of each year. The notice must include addresses to which comments may be sent and addresses (including offices and websites) where the proposal may be reviewed. Our overall goat submission to DOT will include a summary of information and comments received during this public participation process and our responses. We will begin using our overall goal on October 1 of each year, unless we have received other instructions from DOT. If we establish a goal on a project basis, we will begin using our goal tJy the time of the first solicitation for a DOT assisted contract. A description of the methodology to calculate the overall goal and the goal calculations can be found in Attachment 6 to this program. This section of the program will be updated annually. Section 28.49 Transit Vehicle Manufacturers Goals TxDOT will require each transit vehicle manufacturer, as a condition of being authorized to bid or propose on 1=TA assisted transit vehicle procurements, to certify that it has complied with the requirements of this section. Alternatively, TxDOT may, at its discretion and with FTA approval, establish project-specifiic goals for DBE participation in the procurement of transit vehicles in lieu of the TVM complying with this element of the program. 10 Section 26.1 (d-g) Contract Goals TxDOT will use contract goals to meet any portion of the overall goal TxDOT 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 cumula#ively result in meeting any portion of our overall goal that is not projected to be met through the use of race-neutral' means. We will establish contract goals only on those DOT-assisted contracts that have subcontracting possibilities. We need not establish a contract goal on every such contract, and the size of contract goals will be adapted to the circumstances of each such contract (e.g., type and location of work, availability of DBEs to perform the particular type of work.) We will express our contract goals as a percentage of the total amount of a DOT assisted contract. TxDOT DBE Special Provision and Bidder's Certifica#ion The purpose of the DBE Special Provision is to carry out the U. S. Department of Transportation's (DOT) policy of ensuring nondiscrimination in the award and administration of DOT assisted contracts and creating a level playing Feld on which firms owned and controlled by individuals who are determined to be socially and economically disadvantaged can compete fairly far DOT assisted contracts. If the Disadvantaged Business Enterprise (DBE} goal is .greater than zero, Article A, "Disadvantaged Business Enterprise in Federal-Aid Construction", of this Special Provision shall apply to this contract. If there is no DBE goal, Article B, "Race-Neutral DBE Participation", of this Special Provision shall apply, to this contract. The percentage goal for DBE participation in the work to be performed under this contract will be shown on the proposal. Certification of DBE Goal Attainment The certification of DBE goal attainment is included in all proposals for federal-aid highway projects. By signing the proposal, the Bidder certifies that the DBE Baal will be met by obtaining commitments equal to ar exceeding the DBE percentage or that the Bidder will provide a good faith effort to substantiate the attempt to meet the goal. Failure to provide commitments to meet the stated goal or provide a satisfactory good faith effort will be considered a breach of the requirements of the proposal. As a result, the bid proposal guaranty ofi the bidder will become property ofi the Department and the Bidder will be excluded far re bidding on the project when it is re-advertised. See Attachment 7. Tracking and monitoring of DBE goals throughout the life of the contract will be performed by the Department. 11 The Contractor shall submit monthly reports, after work begins, on DBE payments to meet the DBE goal.and far DBE race-neutral participation. The monthly report is to be sent to the Area Engineer. These reports will be due within 15 days after the end of a calendar month. Office of Civil Rights reviews monthly progress reports through computer programs, i.e. SiteManager and Subcontractor Monitoring System {SMS). Upon continual monitoring of the DBE commitment and payments by the Area Engineer, the Area Engineer will notify the Office of Civil Rights of any issue that requires further review. The Office of Civil Rights will initiate a compliance review and take the appropriate contract remedies. See attached DBE Special Provisions ODIJ-461 - Attachment 2. Section 26.53 Good Faith Efforts Procedures Demonstration of good faith efforts {26.53(a} & {c}} The obligation of the bidderlofferor is to make goad faith efforts. The bidder/offeror can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. TxDOTs Office of Civil Rights is responsible for determining whether a bidderlofferor who has not met the contract goal has documented sufficient good faith efforts to be regarded as responsive. We will ensure that all information is complete and accurate and adequately documents the bidderloffers good faith efforts be#ore we commit to the performance of the contract by the bidder/offeror. This process for Good Faith Effort is included in the DBE Special Provision Q00-461 3.c. -Attachment 2. Information to be submitted (26.53(b}) TxDOT treats bidderloffers' compliance with good faith efforts' requirements as a matter of responsiveness. Each solicitation for which a contract goal has been established will require the bidderslofferors 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; 6. Written and signed confirmation from the ^BE that it is participating in the contract as provided in the prime contractors commitment and 12 6. I# the contract goal is not met, evidence of good faith efforts. Administrative reconsideration (2fi.53(d)) Within 15 days of being informed by TxDOT that it is not responsive because it has not documented sufficient goad faith efforts, a bidderlofferor may request administrative reconsideration. Bidderlofferors should make this request in writing to the Office of Civil Rights, 125 E. 11t'' Street, Austin, Texas 78701, (512} 416-4700. The reconsideration official will not have played any role in the original determination that the bidderlofferor did not document sufficient good faith efforts. As part of this reconsideration, the bidderlofferor will have the opportunity to provide written documentation or argument concerning the issue ofwhether it met the goal or made adequate good faith efforts to do so. The bidderlofferor will have the opportunity to meet in person with our reconsideration official to discuss the issue of whether it met the goal or made adequate goad faith efforts to do. We will send the bidderlofferor a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate goad faith efforts to do so. The result of the reconsideration process is not administratively appealable to the Department of Transportation. Good Faith Efforts when a DBE is replaced on a contract (2G.53(f)) Contras#ors' requests for substitutions of DBE subcontractors shall be accompanied by a detailed explanation which should substantiate the need for a substitution. The Contractor may not be allowed to count warK on those items being substituted toward the DBE goal prior to approval of the substitution from the Department. The Districts will be responsible for coordinating and approving Prime's request for Substitution. Districts will notify Office of Civil Rights of the determination of a contractor's compliance andlor noncompliance of the DBE Special Provision and be responsible for coordinating appropriate sanctions with TxDOT's~DBE Liaison Officer. If the contractor fails to comply according to federal regulations specified in 49 CFR §26.53 and according to TxDOT contract specifications the contractor will be sanctioned as outlined in TxDOT DBE Special Provision ODD-4B1-Attachment 2. A Contractor's failure to comply with the requirements of the DBE Special Provision shat! constitute a material breach of the contract. In such a case, the Department reserves the right to terminate the contract, deduct the amount of DBE goal not accomplished by DBEs from the money due or to become due to the Contractor, secure a refund, not as a penalty but as liquidated damages to the Department, or such other remedy or remedies as the Department deems appropriate. 13 Section 2fi.55 Counting DBE Participation TxDOT will count DBE participation toward overall and contract goals as provided - in 49 CFR 26.55. The district will pertorm CUF reviews on contracts that have a DBE goal. A CUF review will be performed on DBEs listed on the approved contract commitment using the Commerciaify Usefu! Function (CUF) Project Site Review checklist. If needed to verify a CUF, obtain a copy of the subcontract agreement for clarification regarding the DBEs contractual responsibilities. Office of Givil Rights will pertorm the CUF reviews on DBE suppliers. For non-supplier DBEs listed an the contract DBE commitment working on the project site and associated project specific locations, complete the checklist as follows: 1. Complete the initial checklist as soon as possible after the DBE's commencement of its work. 2. Monitor the DBEs performance and conduct additional reviews when the DBE's work performance brings into question whether the DBE meets CUF requirements. 3. If information obtained indicates possible noncompliance with the CUF requirements, contact Office of Civi! Rights for a final determination. In order to provide consisten# interpretations statewide, Office of Civil Rights will make final negative CUF determinations and provide guidance and assistance for CUF reviews. For trucking firms TxDOT will count DBE goal credit as follows: A DBE trucking firm (including an owner operator who is certified as a DBE is considered to be performing a CUF when the DBE is responsible for the management and supervision of the entire trucking operation on a particular contract and the DBE itself awns and operates at least 1 fully licensed, insured, and operational truck used on the contract. (a} The Contractor receives credit for the total value of the transportation services the DBE provides on a contract using trucks it owns, insures, and operates using drivers it employs. (b) 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. (c} The DBE may also lease trucks from anon-DBE firm, including from an owner-operator. The DBE who leases trucks from anon-DBE is entitled to credit for the total value of transportation services provided by non-DBE lessees not to exceed the value of transportation services provided by the DBE-owned trucks on the contract. Additional participation by-non-DBE lessees receive credit only #or the fee or commission it receives as result of the lease arrangement 14 {d} A lease must indicate that the DBE has exclusive use of and control over the trucks giving the DBE absolu#e priority for use of the leased trucks. Leased trucks must display the name and identification number ofi the DBE. [68 FR 35554, June 16, 2003] Use ®f Joint Checks With department approval, the use of joint checks between a prime contractor and a DBE subcontractor is allowed. The new DBE Special Provision Section 1.A.5.d. states the following regarding the use of jo.~nt checks: "lf fhe Gon>bractor chooses fo assist a DBE fine, ocher Phan a manufacturing material supplier or regular dealer, and the DBE fine accepts the assistance, the Confractor may act solely as a guarantor by use of a fwo-party check for paymenf of materials fo be used on the project by the DBE. The material supplier must invoice fhe DBE who will present the invoice to the Confractor. The Contractor may issue a Joint check to fhe DBE and the material supplier and -fhe DBE firm must issue the remittance to fhe material supplier. No funds shall go directly from fhe Confractor to fhe material supplier. The DBE frrm may accept or rejecf this joinf checking arrangement The Contractor musf obtain approval from the Department prior to implementing the use of joinf check arrangemen#s with the DBE. Submit fo fhe Department, Joint Check A~oproval Form 2778 for requesting approval. Provide copies of cancelled joinf checks upon request No DBE goal credit wil! be allowed for the cost of DBE maferials that are paid by the Contractor directly fo the maferia! supplier." Procedures- For ail federal-aid contracts, review and approve the use of joint checks prior to their use. Districts should verify that the DBE subcontractor is responsible for ordering, scheduling delivery and issuing payment for the materials. Prime contractor requests for joint check approval must be submitted to the Area Engineer on Form 2178, DBE Joint Check Approval -Attachment 8. The Department wilt expedite approval or denial of the use of DBE joint check agreements to ensure timely delivery of materials. Reasons for denial include, but are not limited to, the prime contractor's insistence on the joint check arrangement and failure of all parties to agree to the arrangement {only the DBE or the supplier may request the use of a joint check}. Obtain copies of cancelled joint checks as necessary to verify that the joint checks have passed through the DBE. Bank images are an acceptable method of review. Review the joint check agreements as necessary to ensure that a three party arrangement exists. xs ~, , Material cast paid by the prime contractor directly to the material supplier is not allowed for DBE goal credit and may cause the denial ofi DBE goal credit far all work performed by the DBE subcontractor. SUBPART D -CERTIFICATION STANDARDS TxDOT will use the certification standards of Subpart D of Part 26 to determine the eligibility of firms to participate as DBEs in DOT-assisted contracts. To be certified as a DBE, a firm must meet all certification eligibility standards. We will make our certification decisions based on the facts as a whole. For information about the certification process or to apply for certification, firms should contact: The Office of Civil Rights,125 E.11"' Street, Austin, Texas 78741, Toll Free 1-866,48a2~1$ Our certification application forms and documentation requirements are found in the attached TUCP Standard Operating Procedures (SOP} at Attachment 9. SUBPART E -CERTIFICATION PROCEDURES TxDOT is a member of the Texas Unified Certification Program (TUCP)]. The TUPC will meet all of the requirements of this section. A description of the TUCP Memorandum of Agreement (MOA) is found at Attachment 10. Wi#hdrawal of DBE Application: TxDOT will follow the procedures under the TUCP for withdrawal DBE App{ication. A DBE may withdraw their application prior to a certification decision being rendered by TxDOT. TxDOT will acknowledge the DBE request for withdrawal of DBE Application by certified letter. The DBE may not reapply for certification for a period of 12 months from the date of receipt of TxDOT's letter, this withdrawal may not be appealed to U5 DOT. Voluntary Surrender of Certification: TxDOT will follow the procedures under the TUCP for surrender of DBE Certification. A DBE may surrender their certification and TxDOT wilk acknowledge the DBE's request for surrender of their certification by certified letter. The DBE may not reapply for certification #or a period of 12 months from the date of receipt of TxDOT's letter. This voluntary surrender may not be appealed to US DOT. Section 26.83 Procedures for Certification Decisions For procedures far the certification decisions see the attached TUCP Standard Operating Procedures (SOP) at Attachment 9. 16 TxDOT is one of six certifying agencies in Texas. The six certifying agencies have agreed by Memorandum of Agreement that TxDOT will be responsible for ail highway construction industry DBE applications, Annual Affidavits, three-year on-site review, and decertification if applicable. TxDOT Wilk ensure that the decision in a proceeding to remove a firm's eligibility (decertification} is made by personnek that did not take part in actions leading to or seeking to implement the proposal to remove the frm's eligibility and are not subject, with respect to the matter, to direction from personnel who did take part in these actions. SUBPART F -COMPLIANCE AND ENFORCEMENT Section 26.1Q9 Information, Confidentiality, Cooperation and Intimidation or Retaliation TxDOT will not release information that may be reasonably construed as confidential business information to any third party without the written consent of the firm #hat submitted the information. This includes applications for DBE Certification and supporting documentation. TxDOT will keep the identity of complainants confidential at their election, however complainants will be advised that in some circumstances, failure to waive the privilege will result in the closure of the investigation or proceeding or hearing. Federal Aviation Administration (FAA) follows the procedures of 14 CFR Part 16 with respect to confidentiality of information and complaints. 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, investigation and other request #or information. Failure to do so shall be a ground for appropriate action against the party involved. 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 ar because the individual or firm has made a complaint, testiiaed, 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. Records must be retained for a period of 3 years following completion of the contract work, and shall be available at reasonable times and places for inspection by authorized representatives of the Department or the DOT. Provide copies of subcontracts or agreements and other documentation upon request. Y7 A't"T'A~I~CS Attachment 1 DBE Regulations: 49 CFR Part 26 Attachment 2 DBE Special Provision 000-~61 Attachment 3 Organizational Chart Attachment 4 Measurement and Payment Special Provision 009-007 Attachment 5 TUCP DBE directory example and website address to the directory Attachment fi DBE Goal Methodology Attachment 7 DBE Bidder Certification Attachment 8 DBE Joint Check Approval Farm Attachment 9 TUCP SOP Attachment 10 TUCP MOA Attachment 19 Forms List 18 Attachment 1 DBE Regulations: 49 CFR Part 26 Attachment 2 DBE Special Provision 000-461 Attachment 3 Organizational Chart Attachment 4 Measurement and Payment Special Provision 009-007 Attachment 5 TUCP DBE directory example and website address to the directory Attachment 6 DBE Goal Methodology Attachment 7 DBE Bidder Certification Attachment 8 DBE Joint Check Approval Form Attachment 9 TUCP SOP Attachment 10 TUCP MOA Attachment 11 Forms List ATTACHMENT 1 ATTA~HiVi'ENT 1 Office of the Secretary of Transporfatian § 25."x46 Fre-employment inquiries (a) Marital status. A recipient shall not make pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is "Miss" or "Mrs." (b) Sex. A recipient may make pre- employment inquiry as to the sex of an applicant for employment, but only if such inquiry is made equally of such applicants of both sexes and if the re- sults of such inquiry are not used in connection with discrimination prohib- ited by these Title 1}C regulations. 4 26.560 Sex ae a bona Sde occupa- tional quskifiaation. A recipient may take action other- wise prohibited by §§ 25.500 through 25.550 provided it is shown that sex is a bona fide occupational qualification for that action, such that consideration of sex with regard to such action is essen- tial to successful operation of the em- ployment Function concerned. A recipi- ent shall not take action pursuant to this section that is based upon alleged comparative employment characteris- tics or stereotyped characterizations of one or the other sex, or upon pref- erence based on sex of the recipient, employees, students, ar other persons, but nothing contained in this section shall prevent a recipient from consid- ering an employee's sex in relation to employment in a Iocker room or toilet facility used only by members of one sex. Subpart F--Procedelres § 25.600 Notice of covered programs, Within fiD days of September 29, 200D, each Federal agency that awards Fed- eral financial assistance shall publish in the FEDERAL REGISTER a notice of the programs covered by these Title IX regulations, Each such Federal agency shall periodically republish the notice of covered progeams to reflect changes in covered programs. Copies of this n~- tice also shall be made available upon request to the Federal agency's office that enforces Title IX, Pf. 2b Title VI of the Civil Rights Act of 1954 (42 U.S.C. 2000d) {"Title Vl") are hereby adopted and applied to these Title IX regulations. These procedures may be found at 49 CFR part 21. (65 FR 52895, Aug. 3D, 290DI PART 26--PARTICIPATION BY DIS- ADVANTAGED BUSINESS ENTER- PRISES IN DEPARTMENT OF TRANSPORTATION FINANCIAL AS5ISTANCE PROGRAMS Subpart A--G~enarai Sec. Z6.1 What are the obJectives of this part? Z6.3 'ro whom does this part apply? 26.5 What dv the terms used in this part mean? 26.7 What discriminatory actions are forhid- den? 26,9 How does the Department issue guid- ance 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 fdr exemp- tions yr waivers? subpart B-Administrative Requirements tar GBE Programs for Federally-Assisted Contracting 26.2i 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 DBl/ financial institutfans7 26.29 What prompt payment mechanisms must recipients have? 26,3E What requirements pertain to the DHE dtrectory? 26.33 What steps must a recipient take t^ address overconcentratlan of DBEs in certain types of work? 26,35 What role do business development and mentor-protege programs have In the t]B>r program? 26.37 What are a rectpient's responsSbilities far monitoring the performance of ether program parUctpanss7 5ubpprt Goals, Good Faith Efforts, and Counting 26.~i1 V4'hat is the role of the statutory ]0 § 25.SD5 Enforcement procedures. percent goat in this program? 26.43 Can recipients use set-asides or quotas The investigative, compliance, and as-part of thSs program? enforcement procedural provisions of ?6.45 How do recipients set overall goals'? ' zss ' ~ h §26.] 2fi.47 Can recipients be penalized for failing to meet overall goals? 26.49 How are overall goals established For transit vehicle manufacturers? 2fi.51 What means do recipients use to meet overall goals? 26.53 What are the good faith efforts proce- dures recipients fgllpw In situations where there ere contract goals? 26.55 How is p$E participatkon taunted to- ward goals? Subpart D--Certiticat{an Standards 26,61 Haw are burdens of proof allocated in the certification process? 26.63 What rules govern group membership determinations? 26.65 What rules govern business size deter- minatiansl 26.67 What rules determine sgcia] and eco- nomic disadvantage? 26.69 What rules ggvern determknations of ownership? 26.71 What rules govern determinations con- cerning contrgi7 26.73 What are other rules affecting certifi- tation7 Subpart E--Gertiticcrtion Procedures 26.81 What are the requirements for Unified Certification Programs? 2$.83 What procedures da recipients fallow in making certification decisions? 26.89 Haw do recipients process applications submitted pursuant to the DOTISI3A MOU? 26.85 How do recipients respond to requests from DBE-certified firms or the SBA made pursuant tq the DOTl5$A MDU7 26.86 Whet miles ggvern recipients' denials of initial requests for certification? 26.87 What procedures does a recipient use to remove a D13E's eliglbilit}rl 26.89 What is the process for certification appeals to the Department of -Franspor- tatian7 26.91 What actions do recipients take foi- lowing DOT certifltation appeal deci- slons7 Subpart r-~amptlance and Enbrcernent 26.101 What compliance procedures apply tq recipients? 26.103 What enforcement actions apply in FHWA and FTA prggrams? 26.1(15 What enforcement actlgns apply in FAA programs? 26.107 LVhat enforcement actions apply to firms partlclpatfng In the DBE program? 26.109 What are the rules governing lnfon motion. confidentiality, caaperation, and intimidation or retaliation? PPE\D1X A TO F~.~,R7 26-CL'ID.~NCE COV• Cf:fL17VG CDOD F.a1TH EFFORTS 49 CFR Sui3title A (] 0-]-04 Edition) APPENDIX B TO PART 26-UNIFORM REPORT OF D$E AWARDS QR COMMITMENTS AND PAY- MENTS FORM APPENDIX C TD PART 26-D$E BUSINESS D6- V£LOPbSENT PROGRAM GtlIDEL1NES APPENDIX D Ta PART 26-MENTOR-PROTEGE PRGCRAM GUIDELINES APPENDIX £ TO PRAT 26--INDIVIDUAL DETER- MINATIONS OF $aCIAL ANO ECaNOMIC D15- ADVANTgGE APPENDIX F To KART 2fi-UNIFORM CERTIFI' CATION APPLICATIaN FORM AUTHORITY: 23 U.S,C, 324; 42 U.S,C, ZI]Olld, et sea,; 49 U,S.C 1615. 47107, 47113. 47123; Sec. I IDI(b), pub, L. 105-178, IlZ Stat. 1117, f 13, SOURCE; 64 FR 5I26, Feb. 2, 1999, unless qth- erwlse noted, Subpart A--General 1:28.1 What .are the objectives of this part? This part seeks tq achieve several ob- ,)ectives: (a) To ensure nondiscrimination fn the award and administration of DOT- assisted contracts in the Department's highway, transit, and airport financial assistance programs; (b) Ta create a Level playing field on which DBEs can compete fairly for DDT-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 stand- ards are permitted to participate as DBEs: (e) Ta help remove barriers tq the participation of DBEs in ]SOT-assisted contracts; (t) To assist the development of firms that can compete successfully in the marketplace outside the DBE program: and (g) To provide appropriate flexibility to recipients of Federal financial as- sistance !n establishing and provldIng ppportunitles Far DBEs. 4 2$.S To whom does this part appIg7 (a) if you are a recipient of any of the following types of Funds, this part ap- plies to you; (1) Federal-aid highway funds avthar- ized under Titles I (other than Part B} and V of the lntermodai Surface Trans- portation Efficiency Act of 1991 (ISTEA), Pub. L. 1f32-2.10, iQ5 Stat. 1919, zsa Office of the Secretary of Transportation nr Titles I, Iii, and V of the Transpar- eatinn Equity Act for the 21st Century (TEA-21), Pub. L. 105-178, 112 Stat. 107. (2) Federal transit funds authorized by Titles i, III, V and VI of ISTEA, Pub, L. 102-240 ar by Federal transit laws in Title 49, U.S. Code, or Titles I, III, and V of the TEA-2i, Pub, L. 105- 1?8. (3) Airport funds authorized by 49 t3.5.C. 47101, et seq. (b} [Reserved] (c) If you are letting a contract, and that contract is to be performed en- tirely 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} Tf you are letting a contract In which DpT financial assistance does not participate, this part does not apply to the contract. !i 2S.b What do the terms used is this part atiean7 Aftlliation has the same meaning the term has in the Small Business Admin- istration (SSA} regulations. i3 GFIi part 121. (1) Except as otherwise provided in 13 CFR part 121, concerns are affiliates of each other when, either directly or in- directly: (i} Or;e concern controls or has the power to control the other; or {ii} A third party or parties controls ar has the power to contra] both; or (iii) An identity of fnterest between or among parties exists such that af- filiation may be found. (2) In determining whether affiliation exists, it is necessary to consider ail appropriate factors, including common ownership, common management, and contractual relationships. Affiliates must be considered together in deter- mining whether a concern meets small business size criteria and the statutory cap on the participation of firms in the DBE program. Alaska A'atrve means a citizen of the united States ~i~ho is a person of one- fourth degree ar mare Alaskan Indian {including Tsimshian Indians not en- rolled in the A~ietlaktia Indian Commu- nity), Eskimo, or Aleut blood, or a combination of those bloodlines. The term includes, in the absence of proof § 2b.5 of a minimum blood quantum, any cit- izen wham 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 {ANG} means any Regional Corporation, Vil- lage Corporation, Urban Corporation, or Group Corporation organized under the laws of the State of Alaska in ac- cordance with the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.). Compliance means that a recipient has correctly implemented the require- ments of this part. Contract means a legally binding re- lationship obligating a seller to Furnish supplies or services (including, but not limited to, construction and profes- sional services} and the buyer to pay For them. For purposes of this part, a ]ease is considered to be a contract. Contractor means one who partici- pates, through a contract ar sub- contract (at any tier}, in a DOT-as- sisted highway, transit, ^r airport pro- gram, Department or DOT means the U.5. Department of Transportation, includ- ing the Office of the Secretary, the Federal Highway Administration {Fl-IWA), the 1~ ederal Transit Adminis- tration {FTA}, -and the Federal Avia- tion Administration (FAA}, Disadvantaged business enterprise or DEE means afor-profit small business concern- (]) That is at least 5I percent owned by one nr more individuals who are bath socially and economically dis- advantaged or, in the case of a corpora- tion, 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 eco- nomically disadvantaged individuals who awn it, DOT-assisted contract means any can- tra~t between a recipient and a con- tractor {at any tier) Funded [n whole or in Bart with DOT financial assistance, including letters of credit ar loan guar- antees, except a contract solely for the purchase of land. 265 § 26.5 D07Y3BA Memorandum of Under- standing or MOU, refers to the agree- ment signed on November 23, 1999, be- tween the Department of Transpor- tation (DOT) and the Small Business Administration {SBA) streamlining certification procedures for participa- tion in SBA's e(a} Business Develop- ment (8{a) BD) and Small Disadvan- taged Business (SDB) programs, and DOT's Disadvantaged Business Enter- prise (DBE) program For small and dis- advantaged businesses. Good faith etl`orts means efforts to achieve a DBE goal ar other require- ment of this part which, by their scope, intensity, and appropriateness to the objective, can reasonably be. expected to fulfill the program requirement. immediate family member means fa- ther, mother, husband, wife, son, daughter, brother, sister, grandmother, grandfather; grandson, granddaughter, mother-in-law, or father-in-law. Indian tribe means any Indian tribe, band, nation, or other organized group ar community of Indians, including any ANC, which is recognized as eligi- ble for the special programs and serv- 4ces provided by the United States to Indians because of their status as Indi- ans, ar is recognized as such by the State in which the tribe, band, nation, group, or community resides. See defi- nition of "tribally-awned concern" in this section, Joint venture means an assoMatian of a DBE firm and one or more other Firms to carry out a single, for-profit business enterprise, far which the par- ties combine their property, capital, ef- forts, skills and knowledge, and in which the DBE is responsible far a dis- tinct, clearly defined portion of the wank af. the contract and whose share in the capital contribution, control, rnanagement, risks, and profits of the joint venture are commensurate with its ownership interest. Native Hawaiian means any indi- vidual whose ancestors were natives. prior to 1778, of the area which now comprises the State of Hawaii. :Native Ifatvallan Qrganira#on means any community service organization serving Native }ia~vaifans in the State ^f Hawaii which is anot-far-profit or- ganization chartered by the S;ate of Hawaii, is controlled by Native Hawai- 49 CFR Subtitle A (1Q-1-~4 Editipn) ions, and whose business activities will principally benefit such Native Hawai- ians. Noncompliance means that a recipient has not Correctly implemented the re- quirements of this part. Operating Admirrlstration ar pA means any of the fallowing parts of DOT: the Federal Aviation Administration (FAA}, Federal Highway Administra- tion {PHWA~, and Federal Trans#t Ad- ministration (FTA), The "Adrninis- trator" of an operating administration includes his ar her designees. Persona! net worth means the net value of the assets of an individual re- maining after total liabilities are de- ducted. An individual's personal net worth does not include: The individ- ual's ownership interest in an appli- cant or participating DBE firm; or the individual's eq~iry in his ar her pri- mary place of residence. An individ- ual's personal net worth includes only his ar her own share of assets held ,jointly or as community property with the individual's spouse. Primary Industry classification means the North American Industrial Classi- fication System (NAILS} designation which best describes the primary busi- ness of a firm. The NAILS is described in the North American Industry Classi- fication Manua!-United Stales, 1997 which is available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA, 22161; by calling 1 (80U) 553-8847; or via the Internet at: http://www.ntls.gnv/ product/naics.htm. Primary recipient means a recipient which receives DQT financial assist- ance and passes same or ail of it on to another recipient. Principal place of business means the business location where the individuals who manage the firm's day-ta-day op- erations spend mast 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 wiEl determine the principal place of busi- ness for DBE program purposes. Program means any undertaking an a recipient's part to use DOT financial assistance, authorized by the laws to which this part applies. 266 Otfce of the Secretary of Trcansporfalion Race-conscious measure or program is one that is focused specifically on as- sisting only DBEs, including women- owned D1:iEs. Race-neutral measure or program is one that is, ar can be, used to assist alt small businesses. Far -the purposes of this part, race-neutral includes gender- neutrality, Recipient is any entity, public ar pri- vate, to which DOT financial assist- ance 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 ar hislher designee. Set-aside means a contracting prac- tice restricting eligibility far the com- petitive award of a contract solely to DBE firms. Sma11 Business Administration or SBA means the United States Small Busi- ness Administration. S.BA certified #7rm refers to firms that have a current, valid certification from or recognized by the SBA under the 8(a) BD or 5D$ programs. Smal! business concern means, with~re- spect to f#rms seeking to participate as DBEs in DOT-assisted contracts, a small business concern as defined pur- suant to section 3 of Che Small Busi- ness Act and Small Business Adminis- tration regulations implementing it (13 CF12 part 121) that also does not exceed the cap on average annual gross re- ceipts specified in § 26.65(b). Socially and economically disadvan- taged individual means any individual who is a citizen (or lawfully admitted permanent resident} of the United States and who is- (1) Any individual who a recipient finds to be a socially and economically disadvantaged individual on a case-by- case basis. (2} Any individual in the following groups, members of which are sebuttably presumed to be socially and economically disadvantaged: (i) "Black Americans," which in- cludes persons having origins in any of the Black racsal groups of Africa: {ii} "Hispanic Americans," which in- cludes persons of Viexican, Puerto Rican, Cuban, 17ominican, Central or South American, ar other Spanish or § 26.7 Portuguese culture or origin, regard- less of race; (iti) "Native Americans," which in- cludes persons who are American Indi- ans, Eskimos, Aleuts, or Native Hawai- ianS; (iv) "Asian-Pacific Americans," which includes persons whose origins are from Japan, China, Taiwan, Korea, Burma (Myanmar), Vietnam, Laos, Cambodia {Kampuchea), Thailand, Ma- laysia, Indonesia, the Philippines, Brunei, Samoa, Guam, the U.S. Trust Territories of the Pacific Islands (Re- public of Palau), the Commonwealth of the Northern Marianas Islands, Macao. Fiji, Tonga, Kirbati, Juvalu, Nauru, Federated States of Micronesia, ar Hong Kvng; (v} "Subcontinent Asian Americans," which includes persons whose origins are from. India, Pakistan, Bangladesh, Bhutan, the Maldives Islands, Nepal ar 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 designa- tion becomes effective. Tribally-owned concern means any concern at least 51 percent awned by an Indian tribe as defined in this section, You refers to a recipient, unless a statement in the text of this part yr the context requires otherwise (i.e., 'You must do XYZ' means that recipi- ents must do XYZ). Js4 FR 5I26, Feb. 2, 1999, as amended at 64 FR 39570; June Z8. I999; 88 FR 35553, .tune IB, 20U3J § 26.7 What diecrimiaatary actions are forhiddea7 {a} You must never exclude any per- son from participation in, deny any person the benefits of, or otherwise dis- criminate against anyone fn .connec- tion with the award and performance of any contract covered by this part on the basis of race, color, sex, ar nattona] origin. (b) In administering your DBE pro- gram, you must not, directly or through contractual yr other arrange- ments, use criteria or methods of ad- ministration that have the effect of de- feating or substantially impairing ac- complishment of the objectives of the program with respect to individuals of zs~ § 2~.9 a particular race, color, sex, nr na- tional origin. 926,9 How does the 17epsrtmeat issue guidance and interpretations under this part? (a) This park applies instead of sub- parts Aand Cthrough iw of 99 CFR part 23 in effect prier to March 9, 1999. (Sea A9 CFR Parts 1 to 99, revised as of Octo- ber 1, 1996.) Only guidance and inter- pretations (including interpretations set forth in certification appeal deci- sions) consistent with this part 2fi and issued after March 4, 1999 have defini- tive, binding effect in implementing the provisions of this part and con- stitute the official position of the De- partment of Transportation. {b} The Secretary of Transportation, Office of the Secretary of Transpor- tation, FHWA, FTA, and FAA may issue written interpretations of or written guidance concerning this part, Written interpretations and guidance are valid and binding, and constitute the official position of the Department of Transportation, only if they are issued over the signature of the Sec- retary of Transportation or if they con- tain the fallowing statement: The General Counsel of the Department of Transportation has reviewed this document and approved it as consistent with the lan- guage and intent of 4B CFR part 26. 926.1Y What records do recipients keep and reportR {a) [Reserved] {b) You must continue to provide data about your DBE program to the Department as directed by DOT oper- ating administrations. {c) You must create and maintain a bidders list. {1) The purpose of this list is to pro- vide you as accurate data as possible about the universe of DBE and non- DBE contractors and subcontractors who seek to work on your Federally-as- sisted contracts for use In helping you set your overall goals. {2) You must obtain the following in- formation about l]13E and non-D$E contractors and subcontractors who seek to work on your Federally-as- sisted contracu: (i) Firm name: (ii) Firm address; 49 CFR Subtitle A (~0-134 Edition) {iii) Firm's status as a DBE or non- nss; {iv) Age of the firm; and {v) The annual gross receipts of the firm, Yau may obtain this information by asking each firm to indicate into what gross receipts bracket they fit {e.g., Ies5 than S5[1D,l7pp; 5500,UOD-Sl mil- lion; Sl-2 million; 52-5 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. Far example, you can collect the data from all bidders, before or after the hid due date, You can conduct a survey that wilt result in statistically sound estimate of the universe of DBE and non-DBE contractors and sub- contractors who seek to work on your Federally-assisted contracts. You may combine different data collection ap- proaches (e.g., collect name and address information from all bidders, while conducting a survey with respect to age and gross receipts information). [64 FR 512fi, Feb. 2, 1999, as amended at 55 FR 69951, Nav, 15, 20001 $ 26.19 'What assuraaces meet recipi- ents sad eantractors make? (a} Each financial assistance agree- ment you sign with a DOT operating administration (or a primary. recipient) must include the Following assurance: The recipient shall eat discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-as• slated contract ar in the adminlsiratlon of lr..s DBE prggram ar the requirements of 49 CFR part 26. The recipient shall take elk nec- essary and reasonable steps under -09 CFR part 26 to ensure nondl5crlmknation In the award and admknls#ratlan of DDT-assisted contracu, The recipient's DBE program, as required by A9 CFR part 26 and as approved by DDT, is incorporated by reference ]n this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shell be treated as a vkolaticn of this agreement. Upon notification to the re- ckpient of its failure to carry out its ap- praved program, the Department may Im- pose sanctions as provkded for under part 26 and may, in appropriate cases, refer the mat- ter for enforcement under 18 U.S.C. 1001 and! ar Che Program Fraud Civil Remedies Act of 1986 (3I U.S.C. 380! et seq-), (b) Each contract you sign with a coneractar (and each subcontract the 268 O!lice o} the Secretary of Transportation prime contractor signs with a subcon- tractor) must include the following as- surance: The contractor, sub recipient ^r subcan- vactor shall not discriminate on the basis of race, talar, national origin, or sex in the per- formance or this contract. The contractor shall carry put 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 con- tract or such other remedy as the recipient deems appropriate. $ 26.I6 How can recipieats apply far exemptions or waiverB? (a) Yau 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 Sec- retary 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 con- templated in connection with the rule- making 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 ex- emption requests. (b} You can apply far a waiver of any provision of Subpart S or G of this part including, but not limited ta, any pro- visions regarding administrative re- quirements, overall goals, contract goals or goad faith efforts. Program waivers are far the purpose of author- izing you to operate a DBE program that achieves the objectives of this part by means that may differ From one ar mare of the requirements of Subpart S or C of this part. Ta receive a pro- gram waiver, you must follow these procedures:. (1) You must apply through the con- cerned operating administration. The application must include a specific pro- gram proposal and address how you will meet the criteria of paragraph (b)(2} of th:s section. Before submitting your application, you must have had public participation in developing your proposal, including consultation with § 26.15 the DBE community and at least one public hearing. Your application must Include a summary of the public par- ttcipation process and the information gathered through it, (2) Your application must Shaw that-~-~ {i) There is a reasonable basis to con- clude 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 G of this part; (11) Conditions in your ~urisdictian are approgrfate for implementing the proposal; (iii) Your proposal would prevent dis- crimination against any individual or group in access to contracting opportu- nities or other benefits of the program; and (iv) Your proposal is consistent with applicable law and program require- ments of the concerned operating ad- ministration's financial assistance pro- gram, (3) The 5eeretary has the authority to approve your application. df the Sec- retary grants your application, you may administer your DBE program as provided in your proposal, sub3ect 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 §x6,49; (ii) Your level of DBE participation continues to be consistent with the ob- jectives of this part; (iii) There is a reasonable limitation an the duration of your modified pro- gram; and (iv} Any other conditions the 5ee- retary makes on the grant of [he waiv- er, (4) The Secretary may end a program waiver at any time and require you to comply with this parc's provisions. The Secretary may also extend the waiver, If he or she determines that all require- ments of paragraphs (b) {z} and (3} of this section continue to be met. Any such extension shall be for no 3onger than period originally set for the dura- tion of the program. 269 § 26.2 i Subpar# B--Administrative Re- orire ederaltyrAss st d gC n5 trotting ~ 25.21 Who must have a ABE pra- grem? (a) if you are in one of these cat- egories and let DOT-assisted contracts, you must have a DBE program meeting the requirements of this part: (1) All Fl-lWA recipients receiving funds authorized by a statute to which this part applies; (2) F'1"A recipients receiving plan- ning, capital and/or operating assist- ance who will award prime contracts (excluding transit vehicle purchases} exceeding 5254,440 in FTA funds in a Federal fiscal year; (3) FAA recipients receiving grants far airport planning ar development whn will award prime contracts exceed- ing $254,400 in FAA funds In a Federal fiscal year. (b)(1) You must submit a DBE pro- gram conforming to this part by Au- gust 31, 1999 to the concerned operating administration (OA). Once the DA has approved your program, the approval counts for all of your DOT-assisted pro- grams (except that goals are reviewed by the particular operating administra- tion that provides funding.fvr your DOT-assisted contracts). (2) Yau 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 pragrem 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 ex- pended. [fie FR 5126, Feb. 2, k899, as amended a[ fi4 FR 3A57D..]une 28, 1999; 65 FR 68951. Nov. I5, 2D00[ 25.23 What is the requireme[s# for a policy statement? You muse issue a signed and dated policy statement that expresses your commitment- to your DoE program, states its objectives. and outlines re- sponsibilities for its implementation. 49 CFR Swbtitla A {1(>-1-04 Edition) Yau must circulate the statement throughout your organization and to the D$E and non-Dl3E business com- munities that .perform work vn your DOT-assisted contracts. 4 28.26 What is the requirement for a liaison officer? You must have a DBE liaison officer, who shall have direct, independent ac- cess 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 pragrem in compliance with this part. 426.24 What efforts must reei~ients make concerning DBF t5nanc~a! in- stitutione7 Yau must thoroughly-investigate the full extent of services offered by finan- cial institutions owned and controlled by socially and economically disadvan- taged individuals in your community and make reasonable efforts to use these institutions, Yau must also en• courage prime contractors to use such institutions. 4 28.29 What prompt payment mecha- nisms must reaip~enta have? (a) Yau must establish, as part of your DBE program, a contract clause to require prime contractors to pay subcontractors for satisfactory per- formance of their contracts no later than 34 days from receipt of each pay- ment you make to the prime con- tractor. (b) Yau must ensure prompt and full payment of retainage from the prime contractor to the subcontractor within 34 days after the subcontractor's work is satisfactorily completed. You must use one of the fallowing methods to comply with this requirement: (1} you may decline to hold retainage from prime contractors and prohihit prime contractnrs from holding retainage from subcontractors. (2} you may decline to hold retainage From prime contractnrs and require a contract clause obligating prime con- tractors to make prompt and full pay- ment of any retainage kept by prime contractor to the subcantractar within 270 Office of the Secretary of TranSporEation 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 ac- ceptances of portions of the prime con- tract, pay retainage to prime contrao- tors based on these acceptances, and require a tontract clause obligating .the prime contractor to pay all retainage owed to the subcontractor far satisfactory completion of the ac- cepted work within 30 days after your payment to the prime contractor. (c) Far purposes of this section, a subcontractor's work is satisfactorily completed when all the tasks called for fn the subcontract have been accom- plished 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 6y that ac- ceptance is deemed to be satisfactorily completed, {d) Your DBE program must provide appropriate means to enforce the re- quirements of this section. These means mayinclude appropriate pen- alties for failure to comply, the terms and conditions of which you set, Your program may also provide that any delay or ppstponement of payment among-the parties may take place only far good cause, with your prior written approval, {e) You may also establish, as Bart of your DBE program, any of the fol- lowing additional mechanisms to en- sure 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 dis- pute resolution mechanisms to resolve payment disputes. You may specify the nature of such mechanisms. (2) A contract clause providing that the prima contractor will not be reim- bursed for work performed by sub- contractors unless and until the prime contractor ensures that the sub- contractors are promptly paid far the work they have performed. {3} Other mechanisms, consistent with this part and applicable state and local law, to ensure that DBEs and § 2G.35 other contractors are fukly and prompt- ly paid. i$8 FR 35553, tune ifi, 2i103] 28.91 Wlsat regniremBrsts pertain to the DBE dsrBCtnry7 You must maintain and make avail- able to interested persons a directory identifying ail firms eligible to partici- pate as DBEs in your program. In the listing for Bach firm, you must include its address, phone number, and the types of work the firm has been cer- tified to perform as a DBE. You must revise your directory at least annually and rnakB updated information avai]- able to contractors and thB public on request, ~ 28.38 What steps mrust a recipient take to address overconcentration of I]BEs in certain types of wnr1K7 (a) 7f you determine that DSl~ firms arB so pverconcentrated in a certain type of work as to unduly burden the opportunity of non-1:7BE firms to par- ticipate 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 devBlopment programs, men- tor-protege programs, and other appra- priate measures designed to assist DBEs in performing work outside of the specific field in which you have de- termined that non-DBEs are unduly burdened, You may also consider vary- ing your use of contract goals, to the extent consistent with § 2fi.51, to unsure that non-DBEs are not unfairly pre- vented from competing for sub- contracts. (c) You must obtain the approval of the concerned DOT operating adminis- tration far your determination of over- concentration and the measures you devise to address it. dnce approved, the measures become part of your DBE program. ~ 28,36 Wl-at role do business develop- ment and meatar-protege programs have in the DSE progrram? (a} You may or, if an operating ad- ministration directs you to, you must establish a DBE business developmene grogram (BDP} to assist firms in gain- ing the ability to compete successfully z71 § 26.37 in the marketplace outside the DBE program. You may require a DBE firm, as a condition of receiving assistance through the BDF', to agree tp termi- nate its participation in the DBE pro- gram after a certain time has passed or certain objectives have been reached. See Appendix C of this part for guid• once on administering BDP programs. {b) As part of a BDP pr separately, you may establish a "mentor-protege" program, in which another DBE or non- DSE firm is the principal source of business development assistance to a DBE firm, {1} Qnly firms you have certified as DBEs before they are proposed fnr par- ticipation in amentor-protege program are eligible to participate in the man- tor-protege program, {2) During the course of the mentor- protege relationship, you must: {U 1Vot award DSE credit to a nan- DBE mentor firm for using its own protege firm for more than one half of its goal an any contract let by the re- cipient; and (ii} Not award DSE credit tp a nan- DBE mentor firm fnr using its own protege firm for more than every other contract performed by the protege firm. (3) For purposes of making deter- minations of business size under this part, you must not treat protege firms as affiliates of mentor firms, when both firms are participating under an ap- proved mentor-protege program, See Appendix D of this part far guidance concerning the operation of mentor- protege programs. (c) Your BDPs and mentor-prptege programs must 6e approved by the cpn- cerned operating administration before you implement them. Qnce approved. they become part of your DBE pro- gram. 26.37 What are a recipien's reapon- aibilitiea for monitoring the per- formance of other program partici- pants? (a) You must implement appropriate mechanisms tp ensure compliance with [he part's requirements by ail program participants (e.g., applying legal and contract remedies available°under Fed- eral, state and local law). Ypu must set 49 CFR Subtitle A (10-1-04 Edition) forth these mechanisms in your DBE program. (b) Yaur DBE program must also in- clude a monitoring and enforcement mechanism to ensure filar work com- mitted tp DBEs at contract award is actually performed by DBEs. (c} This mechanism must provide far a running tally of actual DSE attain- ments {e.g., payments actually made to DBE firms), including a means of com- paring these attainments to commit- ments. in your reports of DBE partici- pation .to the Department, you must display both commitments and attain- ments. [64 FR 5128, Feb, 2, i9@9, as amended at 6S FR fi8951, Nav, i5. 2g40; 68 FR 35554, .Tune 1S, Zgg3l Subpart C-Goals, Good Faith i?norts, and Counting ~ 26.43 What is the role of the atatu• tory i0 percent goal in this pro• gram? {a} The statutes authorizing this pro- gram provide that, except to the extent the Secretary determines otherwise, not Less than i0 gercent of the author- ized funds are to be expended with DBEs. {b} ';'his 1[1 percent goal is an aspira- tipnal gaol at the national level, which the Department uses as a tool in evaiu- ating and monitoring DBEs' opportuni- ties to participate in DOT-assisted cpn- tracts. (c) The national 1I1 percent goal does not authorize or require recipients to set overall ar contract goals at the 1~ percent level, ar any other particular level, pr to take any special adminis- trative steps if their goals are above or below 10 percent. ~ 2B.4S Can recipients use set-asides or quotas as part of this pragram7 (a} Ypu are not permitted to use quotas for Dl3Es on DQT-assisted con- tracts subject to this part. (b) You may not set-aside contracts for D$Es pn DQT-assisted contracts subject tp this part. except that, in limited and extreme circumstances. you may use set-asides when no other method could be reasonahly expected to redress egregious instances of dis- crimination. 272 Office Gt the Secretary of Trarlspartativn 26.45 How do recipients set overall goals? (a)(1} Except as provided in para- graph (a) (2) of this section, you must set an overall goal for DBE participa- tion in your DOT-assisted contracts, {2) If you are a FTA ar FAA recipient who reasonably anticipates awarding (excluding transit vehicle purchases) S250,O~D ar less in FTA ar FAA funds in prime contracts in a Federal fiscal year, you are not required to develop overali goals far FTA ar FAA respec- tively 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 § 2fi.1. (b) Yaur overall goal must be based on demonstrable evidence of the avail- ability of ready, willing •and able DBEs relative to all businesses ready, willing and able to participate an your DOT- assisted contracts (hereafter, the "rel- ative availability of D$Es"). The goal must reflect ynur determination of the level of DBE. participation you would expect absent the effects of discrimina- tion. You cannot simply rely on either the 1D percent national goal, your pee- vious overall goal or past DBE partici- pation 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 6y determining a base figure for the relative availability of DBEs, The following are examples vF approaches that you may take toward determining a base figure, These exam- ples are provided as a starting point For your goal setting process, Any percent- age Figure derived from one of these ex- amples should be considered a basis from which you begin when examining all evidence available in your jurisdic- tion. These examples are net 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 administrati;vn. (i) Use DBE Directories and Census Bu- rea~ Data. Determine the number of ready, ~ti~illing and able DBEs in your ~ market from your DBE. directory. Laing the Census Bureau's County Business Pattern (C33P) data base, de- termine the number of all ready, will- § 25.5 ing and able businesses available in your market that perform work in the same NA1C5 codes. {Information about the CBP data base may be obtained from the Census Bureau at their web site, www.census.govlepcdlebplview/ cbpview.html.} Divide the number of DBEs by the number of all businesses to derive a base figure far the relative availability of DBEs in your market. (2) Use a bidders list. Determine the number of DB1~s that have bid or quoted an your DOT-assisted prime contracts or subcontracts in the pre- vious year. Determine the number of all businesses that have bid nr quoted an prime or subcontracts in the same time period. Divide the number of DBE bidders and quoters by the number For all businesses to derive a base figure far the relative availability of DBEs in your market. (3) Use data from a disparity study. Use a percentage figure derived from data in a valid, applicable disparity study. (b) Use the ,goal of another DOT recip!- ent. If another DOT recipient in the same, or substantially similar, market has sat an overall goal in compliance with this rule, ypu may use that goal as a base figure Far your goal. {5) AlternaClve methods. You may use other methods to determine a base fig- ure for your overall goal. Any method- ology you choose must be based an de- monstrable evidence of local market conditions and be designed to ulti- mately attain a goal that is rationally Belated to the relative availability of DBEs in your market. (d} Step 2. Once you have calculated a base figure, you must examine all of the evidence available in your jurisdic- tion to determine what adjustment, if any, is needed to the base figure in order to arrive at your overall goal. (1) There are many types of evidence that must be considered when adjuso- ing the base figure. These include: {i) The current capacity of DBEs tv perform work in your DOT-assisted contracting program, as measured by the volume of work DBEs have per- formed in recent years; [ii) Evidence from disparity studies conducted anywhere within your juris- diction, to the extent it is not already accounted for in your base figure; and 273 § 26.45 {iii) If your base figure is the goat 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 far DBEs to Form, grow and compete. These include, but are not limited to: (i) Statistical disparities in the abil- ity of DBEs to get the financing, band- ing and insurance required to partici- pate in your program; (ii) Data on employment, self-em- ployment, education, training and union apprenticeship programs, to the extent you can relate it to the opportu- nities for DBEs to perform in your pro- gram. (3} If you attempt tv make an adjust- ment to your base figure to account for the continuing effects of past discrimi- nation (often called the "but far" fac- tor} or the effects of an ongoing DBE program, the adjustment must be based an demonstrable evidence that is logi- cally and directly related to the effect far which the adf ustment is sought. (e) Once you have determined a per- centage figure in accordance with para- graphs (c) and (d} of this section, you should express your overall goal as fol- lows; (1) If you are an FI-IWA recipient, as a percentage of all Federal-aid highway funds you will expend in FIiWA-as- sisted contracts in the forthcoming fis- cal year; (2) If you are an FTA or FAA recipi- ent, as a percentage of all FTA ar FAA funds (exclusive of FTA funds to 6e used for the purchase of transit vehi- cles) that you will expend in FTA ^r FAA-assisted contracts in the forth- coming fiscal year. In appropriate cases, .the FTA or FAA Administrator may permit you to express your overall goal as a percentage of funds fora par- ticular grant or project ar group of grants and/or projects. {f)(1} if you set overall goals on a fis- cal year basis, you must submit them m the applicable DOT operating ad- ministration for review on August l of each year, unless the Administrator of the concerned operating administra- tion establishes a different submission date. 49 Cfiit Subtitle A (to-l-04 Edltlan} (2} If you are an FTA or FAA recipi- ent and set your overall Baal vn a project or grant basis, you must sub- mit the goal for review at a time deter- mined by the FTA yr FAA Adminis- trator, (8) Yvu rnusC include with your over- all goal submission a description of the methodology you used to establish the goal, including your base figure and the evidence with which it was cal- culated, and the adjustments you made tv the base figure and the evidence re- lied on for the adjustments. Ynu should also include a summary listing of the relevant available evidence 1n your ju- risdiction and. where applicable, an ex- planation of why you did not use that evidence to adjust your base figure- Yau must also include your projection of the portions of the overall goal you expect to meet through race-neutral and race-conscious measures, respec- tively (see § 2fi.51(c}), (4} Yvu are not required t^ obtain prior operating administration concur- rence with the your overall goal. How- ever, 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 adminis- tration may, after consulting with you, adjust your overall goal ar require that you do so. The adjusted overall goal is binding on you. (5) If you need additional time tv col- lect data or take other steps to develop an approach tp 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 max- imum extent feasible given the data available to you; and (ii) Avoid imposing undue burdens on non-DBEs. {g) In establishing an overal3 goal, you must peovide for public participa- tion, This public participation must in- clude: (1) Consultation with minority, wom- en's and general contractor groups, community organizations. and other officials or organizations which could 274 Office of the Secretary o! Transportation be expected to have information con- cerning the availability of disadvan- taged and non-disadvantaged busi- nesses, the effects of discrimination on ^pportunities for DSEs, and your ef- forts to establish a level playing field far the participation of DBEs. (Z} A publLshed notice announcing your proposed overall goal, informing the public that the proposed goal and its rationale are available For inspec- tion during normal business hours at your principal office far 30 days fol- lowing the date of the nntice, and in- forming the public that you and the Department will accept comments on the goals for 45 days from the date of the notice. The notice must include ad- dresses to which comments may be sent. and you must publish It in gen- eral circulation media and available minorfty-focused media and trade asso- ciation publications. {h) Your overall goals must provide Far participation by aEl certified DSEs and must not be subdivided into group- specific goats, ]6A FR 5126, Feb, 2, 1899, as amended at fi4 FR 31570, June 28, 1999; 65 FR 6E951, IVpv, 15. 2000; 6B FR 35559. June 16, 261Y3] § 26,4? Can recipients be penalized for failipg to meet overall goals? (a} You cannot be penalized, or treat- ed by the Department as being in non- compliance with this rule, because your DB1~ 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 ar overall goal, or if you fail to implement your program in good faith, you are in noncompliance with this part. §.26.49 How are overall gg~al~ eetab- liebed for transit vehicle snsnufac- turers? (a} If you are an FTA recipient, you must require in your DBE program that each transit vehicle manufac- turer, as a condition of being author- ized to hid or propose on FTA-assisted transit vehicle procurements. certify that it has complied with the require- ments of this section. You do not in- clude FTA assistance used in transit vehicle procurements in the base § 2b.;;1 amount from which your overall goal is calculated. {b) If you are a transit vehicle manu- facturer, ynu must establish and sub- mit for FTA's approval an annual over- all percentage goal, In setting your overall goal, you should be guided. to the extent applicable, by the principles underlying § 2fi.45. 'Fhe base from which you calculate thfs goal is the amount of FTA financial assistance included in transit vehicle contracts you will per- form during the fiscal year in question. Yau must exclude From this base Funds attributable to work performed outside the United States and its territories, possessions, and commonwealths, The requirements and procedures of this part with respect to submission and ap- prove! of overall goals apply to you as they da to recipients. (c) As a transit vehicle manufacturer, ynu may make the certification re- quired by this section iF you have sub- mitted the Baal this section requires and FTA has approved it or not dis- approved tt. (d) As a recipient, you may, with FTA approval, establish pro,~ect-spe- cific goals for DBE participation in the procurement of transit vehicles in lieu of complying through the procedures of this section. (e} If ynu are an FIiWA or FAA re- cipient, you may, with Fld'WA or FAA approval, use the procedures of this section with respect to procurements of vehicles ar specialized equipment. If you choose to do so, then the manufac- turers of this equipment must meet the same requirements (including goal ap- proval by Fl-iWA or FAA) as transit ve- hicle manufacturers must meet in F'FA-assisted procurements. ~ 26.61 What means do recipients use to mee# overall goals? (a} You must meet the maximum fea- silsle portion of your overall goal by using race-neutral means of facili- tat[ng DBE participation. Race-neutral D13E participation includes any time a D1dE wins a prime contract through customary competitive procurement procedures, is awarded a subcontract on a prime contract that does not carry a DBE goal, or even if there fs a DBE goal, wins a subcontract from a prime contractor that did not consider ' 275 § 26.51 its DBE status in making the award (e.g., a prime contractor that uses a strict low bid system to award sub- CaritractS} , (b) Race-neutral means include, but are not limited ta, the following: (l} Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate DBE, and other small businesses, participation (e,g„ unbundling large contracts to make them mare accessible to small busi- nesses, requiring or encouraging prime contractors to subcontract portions of work that they might otherwise per- form with their own forces}; {2) Providing assistance in over- coming limitations such as inability to obtain banding or financing {e.g., by such means as simplifying the bonding process, reducing banding require- ments, eliminating the Empact of sur- ety casts from bids, and providing serv- ices to help DBEs, and other small businesses, obtain bonding and financ- ing) ; (3) Providing technical assistance and other services; (4} Carrying out information and communications programs an con- tracting procedures and specific con- tract 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 serv- ices program to develop and improve immediate and long-kerm business management, record keeping, and fi- nancial and accounting capability for DBEs and other small businesses; {6} Providing services to help DBEs, and other small businesses, improve long-term development, increase op- portunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve even- tual self-sufficiency; (7} Establishing a program to assist new, start-up firms, particularly in fields in which DSE participation has historically been low; (8} Ensuring distrihution of your DBE dsrectory, through print and electronic 49 CFR 5ul7tltle A (i a-1-04 Edition) 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. (G) Each time you submit your over- all goal for review by the concerned op- erating 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 projec- tion is subject to approval by the con- cerned 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 da 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 nn those DOT-assisted contracts that have subcontracting possibilities. (2) You are not required to seta con- tract goal on every DOT-assisted con- tract. Yau 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 aF work involved, the loca- tion of the work, and the availability of DBEs far the work of the particular contract. However, over the period cov- ered by your overall goal, you must set contract goals so that they will cumu- latively 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 ap- proval of each contract goal is not nec- essarily required. However, operating administrations may review and ap- prove or disapprove any contract goal you establish. (4} Your contract goals must provide fnr parttcipatian by ail certified DBiw.s and must not be subdivided into group- specific goals. (f} To ensure that your DBE program continues to he narrowly tailored to overcome the effects of discrimination. z~s Office of the 5ecrefipry of TrpnsfaprlClfion 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-neu- tral means, you must implement your program without setting contract goals during that year. Example to Paragraph (t}(I): Your overall goal for Year 1 ks 12 percent. You estimate that you can olstain 12 percent or mare DBE participation through the use of race-neutral measures, without any use of contract goals. In this case, you da not set any contract goals far the contracts that w111 he per- formed In Year I. {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 ar 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 Baal. If you de- termine that you will fall short of your overall goal, than you must make ap- propriate modifications in your use of race-neutral and/or race-conscious measures to allow you to meet the overall goal. Pxample to Paragraph (~(2)r In Year II, your overall gook is 12 percent. You have esti~ mated [hat you can obtain 5 percent DBE partlcipatian through use of rate-neutral measures. Yqu therefore plan to obtain the remaining 7 percent partfclpatlon through use of DSE goals. By September, you have already obtained kl percent DBE parClcipa- tian far the year. For contracts let during the remainder of the year, you use contract goals only to the extent necessary to obtain an additiana] one percent DSE partlcipatian. Flowever, tf you determine in September that your participation for the year is likely to be only 8 percent total, then you waukd increase your use of race neutral andlor race-cgn- 5Ckau5 means during [he remainder of [he year kn order [o achkeve your overall gaak. (3} If the IaB>r partlcipatian you have obtained by race-neutral means alone meets or exceeds your overall goals for LWO COnSecuLlVe years, you are not re- quired [o make a projection of the amount of your goal you -can meet using such means in the next year. Yau do not set contract goals on any con- traCCS in the next year. You continue § 26.51 using only rate-neutra) means to meet your overall goats unless and until you da not meet your overall goal far a year. Example tp Paragraph (1J(3): Your overall goal for Years I and Year II ks IU percent. 'I'he DBE parttclpatian you obtain through rate- neutral measures alone is 10 percent or mare 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 fallowing years, you do not need to make a pra,}ectlon under paragraph (c) of this secttpn of the portion of your avarall-goal you expect to meet using race-neutral means. Yau simply use race-neutral means to achieve your over- all goals, }iowever, if in Year VI your DBE partlclpatlan falls short of your overall goal, then you must make a paragraph {c) prajec- tlon for Year VII and, if necessary, resume use of contract goals in chat year. (4) If you obtain DHE participation that exceeds your overall goal to 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 (1)(4): ]n Years I and II, your overall goal ks IZ percent, and you obtain i4 and 16 percent DBE particlpatlon, respectkvely, You have exceeded your goals aver the two-year period by an average of 25 percent. In Year III, your overall goal is agakn I2 percent, and your paragraph {c) pro- jection estimates that you will obtain 4 per- cent DBE participation through race-neutral means and 8 percent through contract goals, 'You then reduce the contract goal pro}action by ZS percent {i,e„ from 8 to 6 percent) and set contract goals accordingly during the year, If in Year ]iI you obtain E i percent par- ttcipatign, you da not use this contract goal ad,)ustment mechanism for Year IV, because there have not been two rnnsecutive years of exceeding overall goals. {p} ]n 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 D13E achievements in those contracts with and without contract goals, respec- tively. You must report this data to the concerned operating administra- tion as provided in §26.11. 277 t § 26.53 § 26.53 Wlxat are the goad faitis efforts procedures recipients fallow is silu- atYOap where there are contract goals? ' {a} When you have established a DBE contract goal, you must award the ton- tract only to a bidderlofferor who makes goad faith efforts to meet it. You must determine that a bidderlof- feror has made good faith efforts if the bidderlofferor does either of the fol- lowing things: (1) Documents that it has obtained enough Dl3E 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 En o~- taining enough DBE participation to da so. IF the bidderlofferor does docu- ment adequate good faith efforts, you must not deny award of the ~cantract on the basis that the bidderlofferor failed to meet the. goat. See Appendix A of this part For guidance in determining the adequacy of a bidderlofferor's good faith efforts. (b) ]n your solicitations for DOT-as- sisted contracts far which a contract goat has been established, you must re- quire the following: (1} Award of the contract will be con- ditioned on meeting the requirements of this section; (2} All biddersfoFferors will be re- quired to submit the following infor- mation to the recipient, at the time provided in paragraph (b)(3) of this sec- tion: {i} The names and addresses of DBE firms that will participate in the con- tract; {ii) A description of the work that each DBE will perform; (iii) The dollar amount of the partici- pation of each L?BE firm participating; (iv} Written documentatipn of the bidderlofferor's commitment to use a DBE subcontractor whose participation it submits to meat a contract goal: (v} Written confirmation from the DBE that it is participating in the con- tract as provided in the prime contrac- tor's commitment: and (vi) If rite contract goat is not met, er•idence of good faith efforts (see Ap- pendix A of this part); and (3) At your discretion, the bidderlof- feror must present the information re- 49 CFi2 5ubtille A (]t>F-1-04 Edition) quired by paragraph {b) {2} of this sec- tian- {i} Under sealed bid procedures, as a matter of responsiveness, or with ini- tial proposals, under contract negotia- tion pracedures;or {ii) At any time before 'you commit yourself to the performance of the con- tract 6y the bidderlofferor, as a matter of responsibility, (c) You must make sure all informa- tion is complete and accurate and ade- quately documents the bidderlofferor's good faith efforts before committing yourself to the performance of the con- tract by the bidderlofferor. (d} Tf you determine that the appar- ent successful bidder/afferor has failed to meet the requirements of paragraph (a} of this section, you must, before awarding the Contract, provide the bid- derlofferar an opportunity for adminis- tratlve reconsideration. (1} As part of this reconsideration, the bidderlofferor must have the oppor- tunity to provide written documenta- tion or argument concerning the issue of whether it met the goal or made ade- quate goad faith efforts to do so. (2) Your decision on reconsideration must be made by an official who did not take part in the original deter- mination that the bidderbfferor failed to meet the goal or make adequate good faith efforts to dq so. (3) The bidderlofferor 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 bidderlofferor a written decision an 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 reconsiderat[on process is not administratively appeal- able to the Department of ~ 'T'ranspor- tation. {e) Ina "design-build" or "turnkey" contracting situation, in which the re- cipient lets a master contract to a con- tractor, who in turn lets subsequent subcontracts Far the work of the project, a recipient may establish a goal for the project. The master con- tractor then establishes contract goals, 27$ O(fice o[ the Secretary of Transportation as appropriate, for the subcontracts it lets. Recipients must maintain over- sight of the master contractor's activi- ties to ensure that they are conducted consistent with the requirements aF this part. (f)(1) You must require that a prime contractor not terminate far conven- ience aDBE subcontractor listed in re- sponse to paragraph (h){2) of this sec- tion (or an approved substitute DBE firm) and then perform the work of the terminated subcontract with its own forces or those of an affiliate, without your prior written consent. (2) When a DBE. subcontractor is ter- minated, 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 ef- forts shall be directed at finding an- other 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 procure- ment. (3) Yau must include in each prime contract a prevision for appropriate ad- ministrative remedies that you will in- voke if the prime contractor fails to comply with the requirements of this section. (g) Yau must apply the requirements of this section to DSE bidderslofferors for prime contracts. In determining whether a DBE bidder/offeror for a prune contract has met a contract goal, you count the work the DBE has committed to performing with its own forces as weal as the work that it has committed to be performed by DBE subcontractors and DBE suppliers, 26.55 Sow ie 1]$E participation taunted toward goals? (a) When a DBE participates fn a con- tract, you count only the value of the work actually performed 6y the DBE. toward DHE goals. {1) Count the entire amount of that portion of a construction contract (or other contract not covered by para- graph (a}(2) of this section) that is per- formed by the DSE's ovt~n forces. In- clude the cost of supplies and materials obtained by the DBE. for the work of § 26.55 the contract, including supplies pur- chased or equipment leased by the DBE (except supplies and equipment the DB>; subcontractor purchases or ]eases from the prime contractor or its affil- iate) . (2) Count the entire amount of fees or commissions charged by a D$E firm far providing a bona fide service, such as professional, technical, consultant, ar managerial services. or for providing bonds ar insurance specifically re- quired far the performance of a DflT- assisted contract, toward DBE goals, provided you determine the fee to be reasonable and not excessive as com- pared with fees customarily allowed far similar services. (3} When a DBE subcontracts part of the wank of its contract to another firm, the value of the subcontracted work may be counted toward DBE goals only if the DBIc's subcontractor is itself a DBE. Work that a DBE sub- contracts to a non-DBE firm does not_ count toward DBE goals. {b) When a DBE performs as a partic- ipant in a ,joint venture, count a por- tion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the con- tract that the DBE performs with its own forces toward DBE goals. (c} Gaunt expenditures to a DBE con- tractor toward DBE. goals only if the DBE is performing a commercially use- ful function on that contract. (1} A DBE performs a commercially useful function when it is responsible far execution of the work of the con- tract and is carrying out its respon- sibiIities by actually performing, man- aging, and supervising the work in- volved. To perform a commercially useful function, the DSE must also be responsible, with respect is 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 de- termine whether a DBE is performing a commercially useful Function, you must evaluate the amount of work sub- contracted,industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actua]Iy performing and the 27~ ~ 26.b.5 IIBE credit claimed for its performance of the wnrk, and other relevant factors. {2) A DSE does not perform a com- mercially 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 exer- cise responsibility for at least 39 per- cent of the total cost of its contract with its awn work force, or the DSE subcontracts a greater portion~of the work of a contract than would be .ex- pected an the basis of normal industry practice far the type of wnrk involved, you must presume that it is not per- forming a commercially useful func- tion, {4) When a DBE is presumed not to be performing a commercially useful func- tion as provided in paragraph (c) (3) of this section, the DSE may present evi- dence to rebut this presumption, Yau may determine that the firm is per- forming a commercially useful func- tion 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 ad- ministration, but are not administra- tively appealable to DOT. {d) Use the fallowing factors in deter- mining whether a DBE tnscking com- pany is performing a commercially useful function: (1) The DSE 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 ar- rangement for the purpose of meeting DSE goals. (2) The DBE must itself own and op- erate at least one fully licensed, in- sured, and operational truck used on the contract. (3} The DBE receives credit far the total value of the transportation serv- ices it provides on the contract using trucks it owns, insures, and operates using dri~•ers it employs. 49 CFR 5u~t-tle A (lt]~1-04 Edition) (4) The DBE may lease trucks from another DBE firm, including an nwner- 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 les- see DBE provides on the contract, (5} The DBE may also lease trucks from anon-DBE firm, including from an owner-operator. The D13E who leases trucks from anon-DBE is enti- tled to credit for the total value of .transportation services provided by non-DB£ lessees not to exceed the value of transportation services pro- vided by DB1".-owned trucks on the con- tract. Additional garticipatian by non- DBl~ lessees receives credit only for the fee or commission it receives as a re- sult of the lease arrangement. If a re- cipient chooses this approach, it must obtain written consent from the appro- priate Department Operating Adminis- tration. Example to this paragraph (d)(5J: DSE Ftrm X uses two of its own trucks on a contract. It leases two trucks from DBE Firm Y and six trucks from non-DBE Firm Z. DBS credit would be awarded far the fiotal value of transportatkon services provided by Firm X and Firm Y, and may also 6e awarded For the total value of transportation services pro- vided by four of the six trucks provided by Ftan Z. In all, full credit would be allowed fot the partkdpation aF eight trucks. With respect to the other two trucks provided by Firm Z, DBE credit could be awarded only for the fees or cornrnissions pertaining to those trucks Firm X receives as a result of the lease with Firm Z. (6} For purposes of this paragraph (d), a lease must indicate that the DBE has exclusive use of and control over the truck. This does oat 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: (i}(i) if the materials ar supplies are attained from a DBE manufacturer, count 1t74 percent of the cost of the ma- terials or supplies toward DBE goals. 28fl Office of the Secretary of Transportation (ii} For purposes of this paragraph (e)(1), a manufacturer is a.firm that op- erates or maintains a factory or estab- lishment that produces, on the prem- ises, the materials, supplies, articles, or equipment required under the con- tract and of the general character de- scribed 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 ma- terials or supplies toward ABE goals. {ii} For purposes of this section, a regular dealer is a firm that awns, op- erates, ar maintains a store, ware- house, or ether establishment in which the materials, supplies, articles or equipment of the general character de- scribed by the specifications and re- quired under the contract are bought, kept in stock, and regularly said or leased to the public in the usual course of business, (A} To be a regular dealer, the firm must be an established, regular busi- ness that engages, as its principal busi- ness and under its awn name, in the purchase and sale or lease of the prod- ucts in question {B) A person may be a regular dealer in such bulk items as petroleum prod- ucts, steel, cement, gravel, stone, or asphalt without owning, operating, or maintaining a place of business as pro- vided in this paragraph (e)(2)(ii) if the person both owns and operates dis- tribution 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, manufactur- ers' representatives, or other persons who arrange ar expedite transactions are not regular dealers within the meaning of this paragraph (e) (2}. (3) With respect to materials or sup- plies 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 net excessive as compared with fees customarily a]- § 2b.b 1 lowed far similar services. Do not count any portion of the cost of the materials and supplies themselves to- ward 17$E goals, however. (f; If a firm is not currently certified as a DBE in accordance with the stand- ards 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 pro- vided for In§26,87(1)). {g) Do not count the dollar value of work performed under a contract with a firm after it has ceased to be cer- tified toward your overall goal. {h) Do not count the participation of a DBE subcontractor toward a contrac- tor's final compliance with its D$E ob- ligations on a contract until the amount being cpunted has actually been paid to the DBE. (fi4 FR 5126, Feb. 2, 1989, as amended at 65 Pl2 6885!, Nov. 15. 2flQ6; 6$ F12 35554, tune 16, 20031 Subpart ~-Cei~iticatian Standards 4 26.61 Flow are bur$esne of proof allo- cated is the certification process? (a} In determining whether tq certify a firm as eligible to participate as a D$E, you must apply the standards of this subpart. {b) The firm seeking certification has the burden of demgnstrating to you, by a preponderance of the evidence, that it meets the requirements of this sub- part concerning group membership or individuaE disadvantage, business size, ownership, and Control. {c) You must rebuttably presume that members of the designated groups Identified in §2fi.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 re- buttable presumption, individuals must submit a signed, notarized statement that they are a member aF one of the groups in § 26,87{a). Applicants da have the obligation to provide you informa- tion concerning their economic dis- advantage {see §26.67}. (d) Individuals who are not presumed to be socially and economically dis- advantaged, and individuals concerning wham the presumption of disadvantage has been rebutted. have the burden of z$1 § 26.63 proving to you, by a preponderance of the evidence, that they are socially and economically disadvantaged. (See Ap- pendix E .of this part.} (e} You must make determinations concerning whether individuals and firms have met their burden of dem- onstrating group membership, owner- ship, control, and social and economic disadvantage (where disadvantage must be dernanstrated on an individual basis) by considering all the facts in the record, viewed as a whole. IS4 FR 5336, x'eb. 2, 1999, as amended at 68 FR 35554, .7une I6, 2003] '128.88 What raise govern group mem• betship determinationa7 (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 ~easans far questioning his or her group member- ship and a written request Far addi- tional evidence as outlined in para- graph (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 dis- prvportionate burden on members of a particular group could violate § 26.7(b) and/or Titt'e VI of the Civil Rights Act of 39$4 and 49 CFR part 21. (b) Fn making such a determination, you must consider whether the person has held himself out to he a member of the group aver a sang 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 ap- plicant to produce appropriate dacu- rnentation aF group membership. (1) if you determine that an indi- vidual claiming to he a member of a group presumed to be disadvantaged is not a member of a designated disadvan- taged group, the individual must dem- onstrate social and economic disadvan- tage on an individual basis. 49 CFR Sitblille A (1E1-1-04 Editipn} {2} Your decisions concerning mem- bership in a designated group are sub- ,ject to the certification appeals proce- dure of § 26.89. [64 Flt 512fi, Feb. 2, 1599, as amended at 68 FR 35554, June 16, 2008] ~ 28.8G What raise govern business size determinations? {a) To be an eligible DBE, a firm (in- cluding its affiliates) must be an exist- ing small business, as defined by Small Business Administration ($BA) stand- ards. Yau must apply current SBA business size standard{s) found in 13 GFR part 1Zl appropriate to the type(s) of work the firm seeks to perform in DpT-assisted contracts. {b) Even if it meets the requirements of paragraph (a) of this section, a firm is not an eligible DBE in any Federal fiscal year if the firm {including its af- filiates) has had average annual gross receipts, as defined by SBA regulations (see 13 CFR 12L4172), aver the firm's pre- vious three fiscal years, in excess of S18.fi million, The Secretary adjusts this amount for inflation from time to time. ~ 26.87 What rules determine social aad ecvnvmia disadvantage? {a} Presumption of disadvantage. (1) You must rebuttabiy presume that citizens of the United States (or law- fully admitted permanent residents) why are warren, Black Americans. His- panic Americans. Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or other minorities found to be disadvantaged by the SBA, are socially and economically dis- advantaged #ndividuais. You must re- quire applicants to submit a signed, no- tarized certification that each pre- sumptively disadvantaged owner ls. in fact, socially and economically dis- advantaged, {2) (i} You must require each indi- vidual owner of a firm appIying~to par- ticipate as a DBE (except a firm apply- ing to participate as a DBE airport concessionaire) whose ownership and control are relied upon for DBE certifi- cation to certify that he or she has a personal net worth that does not ex- ceed 575U,000. 282 QNice at the Secretary of Trpnsportcstion (ii) Yau must require each individual who makes this certification to sup- port it with a signed, notarized state- ment of personal net worth, with ap- propriate supporting documentation. This statement and documentation must not be unduly lengthy, burden- some, or intrusive. (iii) In determining an individual's net worth, you must observe the fol- lowing requirements: (A} Exclude an individual's ownership interest in the applicant firm; (B) Exclude the individual's equity in his or her primary_.. residence..(excegt any portion of such equity that is at- tributable to excessive withdrawals from the applicant firm). (C} Da not use a contingent liability to reduce an individual's net worth. (D) With respect to assets held in vested pension plans, Individual 12etire- ment Accounts, 401(k} accounts, or other retirement savings or investment programs in which the assets cannot be distributed to the individuai at the present time without significant ad- verse tax or interest wnsequences, in- clude oily the present value of such as- sets, less the tax and interest penalties that would accrue if the asset were dis- tributed at the present time. (iv) Notwithstanding any provision of Federal or state law, you must not re- lease an individual's personal net worth statement nor any dacumenta- tian supporting it to any third party without the written consent of the sub- mitter. F~rovided, that you must trans- mit this information to DOT in any certification appeal proceeding under §26.88 in which the disadvantaged sta- tus of the individual is in question. (b) Rebuttal of presumption Df dis- advantage. (i} If the statement of per- sona] net worth that an individuai sub- mits under paragraph (a) (2) of this sea tion shows that the individual's per- sonal net worth exceeds S75(i,U00, the in- dividual's presumption of economic disadvantage is rebutted. You are not required co 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 «•ho is a member of one of the designated groups is not, in fact, socially andror econami- § 26.67 cally disadvantaged you may, at any time, start a proceeding to determine whether the presumption should be re- garded as rebutted with respect to that individual. Your proceeding must fol- low the procedures of § 26.87. (3) in such a proceeding, you have the burden of demonstrating, by a prepon- derance of the evidence, that the indi- vidual is not socially and economically disadvantaged. Yau may.require.the in- dividual to produce information rel- evant to the determination of his or her disadvantage. (9) When an individual's presumption of social and/or economic disadvantage has been rebutted, his ar her ownership and control of the Firm in question can- not be used for purposes of DBE eligi- bility under this subpart unless and until he or she makes an individual showing of social andlar economic dis- advantage. If the basis for rebutting C.he presumption is a determination that the individual's persona! net worth exceeds 3750,UOfi, the individual is no longer eligible for participation in the program and cannot regain eligi- bility by making an individual showing of disadvantage. (c) IReserved] (d) 1'ndividuai determinatrons of social and economic disadvantage. Firms owned and controlled by individuals who are not presumed to be socially and economically disadvantaged (in- cluding individuals whose presumed disadvantage has been eebutted} may apply for DBE certification. You must make acase-by-case determination of whether each individual whose owner- ship and control are relied upon for DBE certification is socially and eco- nomically 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 disadvan- taged. An individual whose personal net worth exceeds S75D.flOl1 shall not be deemed to be economically disadvan- taged. In making these determinations, use the guidance found in Appendix E of this part. You must require that ep- piicants provide sufficient information 283 § 2b.69 to permit determinations under the guidance of Appendix E of this part. [64 FR 5126, FeU. 2. 1999, as amended at $4 FR 3§570, June 28, 1999; 68 FR 35554, June 16, 20p3~ ~ 26.69 What rules gavera determsua- tiarss of ownership? (a) in determining whether the so- cially and economically disadvantaged participants in a firm awn the firm, you must consider all the facts in the retard, viewed as a whole, {b) To be an eligible DBE, a firm must be at least 51 percent owned by socially and economically disadvan- taged individuals. (1} In the case of a corporation, such individuals must own at least 51. per- cent of the each class of voting stock outstanding and 51 percent of the ag- gregate of all stock outstanding. (2) In the case of a partnership, 51 percent of each class of partnership in- terest must be awned by socially and economically disadvantaged individ- uals. 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 awned by socially and economically disadvantaged individuals. {t) The firm's ownership by socially and ecanamically disadvantaged indi- viduals must be real, substantial, and continuing, going beyond pro forma ownership of the Firm as reflected in ownership documents. The disadvan- taged owners must enjoy the cus- tomary incidents of ownership, and share in the risks and profits commen- surate with their ownership interests, as demonstrated by the substance, not merely the farm, of arrangements, (d) All securities that constitute ownership of a firm shall be held di- rectiy by disadvantaged persons. Ex- cept as provided in this paragraph {d), no securities ar assets held in trust, or by any guardian far a minor, are con- sidered as held by disadvantaged per- sons in determining the o~mership of a Firm. However, securities, or assets held in trust are regarded as held by a dis- ado~antaged individual for purposes of determining ownership of the firm, if-- (1) The beneficial owner of securities or assets held in trust is a disadvan- 49 CFR 5ubfi1le A (3~-1-04 EdEtiaei) raged individual, and [he trustee is the same or another such individual; ar (2) The. beneficial owner of a crust is a disadvantaged individual who, rather than the trustee, exercises effective control over the management, policy- making, and daily operationa! activi- ties of the firm. Assets held in a rev- ocable 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 capita! or ex- pertise by the socially and economi- cally disadvantaged owners to acquire their ownership interests must be real and substantial. Examples of insuffi- cient contributions.include apromise 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 ac- tivities as an employee. petit instru- ments from financial institutions nr 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 re- lied upon as part of a disadvantaged owner's contribution to acquire owner- ship: (1} The owner's expertise must be- (i} In a special€zed field: (ii) df outstanding quality; (iii) In areas critical to the firm`s op- erations; (iv) Indispensable to the firm's poten- tial 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 wi~ase expertise is relied upon must have a significant fi- nancial investment in the firm. (g} You must always deem as held by a socially and economically disadvan- taged individuate far purposes of deter- mining ownership, ail interests in a business or other assets obtained by the individual- {1} As the result of a final property settlement ar court order in a divorce or legal separation, provided that no 281 Office of fihe Secretary of Tra~spartation 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, al€ interests in a business or other assets obtained by the individual as the result of a gift, or transfer without adequate consider- ation, from any non-disadvantaged in- dividual ar non-DBE firm who is- {i) Involved in the same firm for which the individual is seeking certifi- cation, 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 affil- iate of the firm, for which the indi- vidual 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- (i} The gift or transfer to the dis- advantaged individual was made for reasons other than obtaining certifi- ca#ion as a DBE; and (li) The disadvantaged individual ac- tually controls the management, pol- icy, and operations of the firm, not- withstanding the continuing participa- tion of anon-disadvantaged individual who provided the gift or transfer. (i} You must apply the following rules in situations in which marital as- sets 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 bath spouses, are used to acquire the ownership interest asserted 6y one spouse, you must deem the ownership interest in the firm to have been ac- quired by that spouse with his or her own individual resources, provided that the other spouse irrevocably renounces and transfers all rights in the owner- ship 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 nr community property assets toward § 2b.71 ownership than state Saw would recog- nize as belonging to the socially and ecanomically disadvantaged owner of the applicant firm. (2) A copy of the document Legally transferring and renouncing the other spouse's rights in the ,faintly owned or community assets used to acquire an ownership interest in the firm must be included as part of the Firm's applica- tion 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, ar find a firm in- eligible, solely because- (!) A socially and economically dis- advantaged 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 cn-sig- nature of a spouse who is not a socially and econornlcally disadvantaged indi- vidual on'financing agreements, con- tracts for the purchase or safe of real or personal property, bank signature cards, ar 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 disadvan- taged individual to a spouse who is such an individual, In this case, you must glue particularly close and care- ful scrutiny to the ownership and con- trol of a firm to ensure that it is awned and controlled, in substance as wall as in farm, by a socially and economically disadvantaged individual. ~ 28.71 What rules govern dei:ermina- tione concerning control? (a) In determining whether socially and ecanomically disadvantaged own- ers control a firm, you must consider ail the facts in the record, viewed as a whale. {bJ Only an independent business may be certified as a DBE. An Independent business is one the viability of which does oat depend on its relationship with another firm or firms. (i) In determining whether a poten- tial DBE is an independent business, you must scrutinize relationships with 2$5 ~ a6.71 non-DBE firms, in such areas as per- sonnel, facilities, equ#pment, financial and/or banding support, and ether re- sources. (2) You must consider whether present ar recent emplayerlemployee relationships between the d#sadvan- taged owners} of the potential DSE and non-DBE firms ar persons associ- ated with non-DBE -firms compromise the independence of the potential DBE flan. (3} You must examine the firm's rela- tionships with prime contractors to de- termine whether a pattern of exclusive or primary dealings with a prime con- tractor compromises the independence of the potential DBE firm, (4) In considering factors related to the kndependence of a potential DBE firm, you must canskder the consist- ency of relationships between the po- tential DB8 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 aeonnmically dis- advantaged owners. There can he no re- strictions through corporate charter provisions. by-law provisions, con- tracts or any other formal or informal devices (e.g., cumulative voting rights, voting powers attached to different classes of stock, employment con- tracts, requirements for concurrence by non-disadvantaged partners, condi- tions precedent ar subsequent, execu- tory agreements, voting trusts, restric- tlans on or assignments of vot#ng rights) that prevent the sac#ally 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 oat preclude a spousal co-signature an documents as provided for in § 26.68(}) (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-ta-day as well as long-term decisions ort matters of man- agement. policy and operations. (1) A disadvantaged owner must hold the highest off#cer position in the com- pany (e.g., chief executive officer or president). 49 CSR Subtitle A {11-04 Edliion) (2} Ina corporation, disadvantaged owners insist control the board of direo- tars. (3} In a partnership, one or more dis- advantaged owners must serve as gen- eral partners, with control over all partnership decisions. (e} Individuals who are not socially and economically disadvantaged may be involved in a DBE firm as owners, managers, employees, stockholders, of- ficers, and/or directors. Such individ- uals must not, however, possess nr ex- ercise the power to control the firm, or be disproportionately responsible far the operation of the firm. (f} The socially and economically dis- advantaged owners of the firm may deI- egate various areas of the manage- ment, policymaking, or daily oper- ations of the firm to other participants in the firm, regardless of whether these participants are socially and economi- cally disadvantaged individuals, Such delegations of authority must be rev- ocable, and the socially and economi- cally disadvantaged owners must re- tain the power to hire and Fire any per- son to whom such authority is dele- gated. The managerial role of the so- cially and economically disadvantaged owners in the firm's overall affairs must 6e such that the recipient can reasonably conclude that the socially and economically disadvantaged own- ers actually exercise control over the firm's operations, managemen[, and policy. (g) The socially and economically disadvantaged owners must have an overall understanding of, and manage- rial and technics! competence and ex- perience directly related to, the type of business fn which the firm is engaged and the Firm's operations. The socially and economically disadvantaged own- ers are oat required to have experience or expertise in every critical area of the firm's operations, or to have great- er experience or expertise in a given field than managers or key employees. The socially and economically dis- advantaged owners must have the abil- ity to intelligently and critically evaluate Information presented by other participants in the Cirm's activi- ties and to use this information to make independent decisions concerning 28fi Office of the Secretary of Transportation the firm's daily operations, manage- ment, and policymaking. Generally, expertise limited to office manage- ment, administration, or book4ceeping functions unrelated to the principal lousiness activities of the firm is insuf- ficient to demonstrate control. {h) 1F state or local law requires the persons to have a particular license or ^ther credential in order to own andlar control a certain type of firm, then the socially and economically disadvan- taged persons who own and control a potential DSE firm of that type must possess the required license ar creden- tial. If state or focal law does eat re- quire such a person to have such a li- cense or credential to own andlor con- trol affirm, you must not deny certifi- cation solely on the ground that the person lacks the license or credential. However, you may take Into account the absence of the license ar credential as one factor in determining whether the socially and economically dis- advantaged owners actually contraE 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 DSE. Such consideration shall be in the context of the duties of the per- sons involved, normal industry prac- tices, the firm's policy and practice concerning reinvestment of income, and any other explanations fnr the dif- ferences Araffered by the firm. You may determine that a firm is con- trolled by its socially and economi- cally disadvantaged owner although that owner's remuneration is lower than that of some other participants in the firm. (2) Tn a case where anon-disadvan- taged individual formerly controlled the firm, and a socially and economi- cally disadvantaged individual now controls it. you may consider a dif- ference between the remuneration of the Former and current controller of the firm as a factor in determining ~vho controls the firm, particularly when the non-disadvantaged individual re- mains involved with the firm and con- tinues to receive greater compensation than the disadvantagedindivtdual,. § 2b.71 ()) In order t^ be viewed as control- ling affirm, asocially and economi- cally disadvantaged owner cannot en- gage in outside employment or ether business interests that conflict wtth 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 ex- ample, absentee ownership of a busi- ness 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 eve- nings andlor weekends, if the indi- vidual controls it all the time it Ys op- erating; (k){1) A socially and economically disadvantaged individua! may control a firm even though one or mere of the individual's immediate family mem- bers (who themselves are not socially and economically disadvantaged indi- viduals) participate in the firm as a manager, employee, owner, or in an- other capacity, Except as otherwise provided in this paragraph, you must make a,}udgment about the control the socially and economically disadvan- taged owner exercises via-a-via other persons involved in the business as you do in other situations, without regard to whether or not Che other persons are immediate family members. (2) If you cannot determine that the socially and economically disadvan- taged owners---as distinct from the family as a whole--~antrol the Firm, then the sncially and economically dis- advantaged owners have failed to carry their burden of proof concerning con- trol, even though they may participate significantly in the firm's activities. {i) Where a firm was Formerly awned andlor controlled by a non-disadvan- taged individual (whether ar not an im- mediate family member}, ownership andlar control were transferred to a so- cially and economically disadvantaged individual, and the non-disadvantaged individual remains involved with the Firm in any capacity, the disadvan- taged individual now Awning the firm must demonstrate to you, by clear and convincing evidence, that; (1) The transfer of ownership andJar control to the disadvantaged individual 287 § 26.73 was made far reasons other than ob- taining certification as a DBE; and (2} The disadvantaged individual ac- tually controls the management, pol- icy, and operations pf the firm, not- withstanding the continuing participa- t[on pf anon-disadvantaged individual who formerly owned andlor controlled the firm. {m) In determining whether a firm is controlled by its socially and economi- cally disadvantaged owners, you may consider whether the firm owns equip- ment necessary to perform its work. However, you must not determine that a firm is not controlled by socially and economically disadvantaged individ- uals solely because the firm leases, rather than awns, 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 com- promises 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 t~-e firm. To became cer- tified in an additional type of work, the firm need demonstrate to you only that its socially and economically dis- advantaged owners are able to control the firm with respect to that type of work. You may not, in this situation, require that the firm be recertified or submit a new application for certifi- cation. but you must verify the dis- advantaged owner's control of the firm in the additlanal type of work. (o) A Tousiness operating under a fran- chise or license agreement may be cer- tified if it meets the standards in this subpart and the franchiser ar licenser is not affiliated with the franchisee or licensee. In determining whether affili- ation exists, you should generally not consider the restraints relating to standardized quality, advertising, ac- countir~g format, and other provisions imposed an the franchisee or licensee by the franchise agreement or license, provided that the franchisee or licensee has the right tp profit from its efforts and bears the risk aF lass commensu- rate with ownership. alternatively, even though a' franchisee or licensee may not be controlled by virtue of such provisions in the franchise agreement 49 CFR 5utstitfe A (1o-l-0e! k:dktion) or license, affiliation could arise through other means, such as common management or excessive restrictipns an the sale or transfer of the franchise interest or' license. {p) In order for a partnership to be controlled by socially and economi- cally disadvantaged individuals, any non-disadvantaged partners must not have the power, without the specific written concurrence of the socially and economically disadvantaged partners}, 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 com- pany. The use of such a company does not preclude the socially and economi- cally disadvantaged individuals from controlling these firm if they continue to maintain an employer-employee re- lationship with the leased employees. This includes being responsible far hir- ing, firing, training, assigning, and otherwise controlling the on-the job activities of the employees, as well as ultimate responsibility far wage and tax obligations related to the employ- ees. 26.29 What are other rules af€ecting cartlfication7 (a)(1) Consideration of whether a firm performs a commercially useful Func- tian or is a regular dealer pertains solely to counting toward DBE goals the participation of flans that have al- ready been certified as D6Es, Except as provided in paragraph (a)(2) of this sec- tion. you must not consider commer- cially useful function issues in any way in making decisions about whether to certify a firm as a DBE. (Z) You may consider, in making cer- tification decisions, whether a firm has exhibited a pattern of conduct indi- cating its fnvoivement in attempts to evade or subvert the intent ar require- ments of [he D$E. program, (b) You must evaluate the eligibility of a firm an the basis of present cir- cumstances, Yau must not refuse to certify a firm based solely on historical information indicating a lack of o~tiner- ship ar control of the firm by socially and economically disadvantaged indi- viduals at some time in the past. if the 288 Office Qf the 5ecreiary a! Trpnspariafian firm currently meets the ownership and control standards of this part, Nor must you refuse to certify a firm solely on the basis that it is a newly farmed firm. {c} I}BE Firms and firms seeking DBE certification shall cooperate fully with your requests (and DDT requests} for information relevant tp the certifi- cation 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 disadvan- taged individuals, are not eligible to be certified as DBEs. Ee) An eligible DBE firm must be owned by individuals who are socially and economically disadvantaged. $x- cept as provided in this paragraph, a firm that is not owned by such individ- uals, but instead is owned by another firm-~--even a I3BE firm---cannot Le an eligible DBE. {1) If socially and economically dis- advantaged individuals own and can- troi affirm through a parent or holding company, established for tax, capital- ization or other purposes consistent with industry practice, and the parent or holding camgany in turn owns and controls an operating subsidiary, you may certify the subsidiary iF it other- wise meets all requirements of this subpart, In this situation, the indi- vidual owners and controllers of the parent or holding company are deemed to control the subsidiary through the parent or holding company. {2} Yau may certify such a subsidiary only if there is cumulatively 51 percent ownership of the subsidiary by socially and ecanamical]y disadvantaged indi- viduals. The Fallowing examples illus- trate haw this cumulative ownership praviskon works: Example !: Socially and econamlca]iy dis- advantaged individuals awn 1011 percent of a holding company, which has awholly-awned subsidiary. The subsidiary may be certified. if it meets all other requirements. Example Z: Disadvantaged individuals own il}0 percent of the holding company, which o+vns 53 percent of a subsidiary. The sub- sidiary may be certified, if all other require- ments are met. Example 3: Disadvantaged individuals awn 88 percent of the holding company, which fn § 26.73 turn owns 7D percent of a subsidiary. In this case, the cumulative ownership of the sub• sldiary by disadvantaged individuals is 58 percent (88 percent of the 70 percent). This is more than 51 percent, sa you may certify the subsidiary, if all other requirements are met. Example 4: Same as Example 2 ar 3, but someone other titan the 5acially and eco- nomically disadvantaged owners of the par- ent ar holding Company controls the sub- sid~ary. Even though the subsidiary is owned by disadvantaged individuals, through the holding ar parent company, you cannot cer- tify it because it fails to meet control re- quirements, Example 5: Disadvantaged individuals own 8D percent of the holding company, which !n turn awns 51 percent of a subsidiary. In this case, the cumulative ownership of the sub- sidiary ly disadvantaged indlviduals is about 31 percent, This 1s less than 51. percent, so you cannot certify the subsidiary. Eacamplc 6; The holding company, in addi- tion to the subsidiary seeking certification, owns several other companies. The combined gross receipts of the holding companies and !ts suhsidlaries are greater than the size standard for the subsidiary seeking certlff• cation andlor the grass receipts tap of § 26.65(6), Under the rules concerning aFf113- ation. the subsidiary falls to meet the size standard and cannot be certified. Ef) Recognition of a business as a sep- arate entity for tax ar.carpprate pur- poses is not necessarily sufficient to demonstrate that a firm is an inde- pendent business, owned and controlled by racially and economically disadvan- taged individuals, {@~ Yau must not require a DBE firm to be prequalified as a condition far certification unless the recipient re- quires all firms that participate in its contracts and. subcontracts to be prequalified, {h} A firm that is owned by an Indian tribe or Native Hawaiian arganizatian, rather than by Indians or Native Ha- waiians es indlviduals, may be eligible far certification. Such a firm must meet the size standards of § 26.35. Such a firm must be controlled by socially and economically disadvantaged indi- viduals, as provided in §26.71. {i) The following specie! rules apply to the certification of Firms relaxed to Alaska Native Corporations (r~NCs). EI) Notwithstanding any other provi- sions of this subpart, a direct or indi- rect subsidiary corporation. }Dint ~~en- ture, ar partnership entity of an ANC is eligible for certification as a DBE if i[ 289 § 2.81 meets all of the following require- ments: (i) The Settlement Common Stock of the underlying ANC and other stock of the ANC held by holders of the Settle- ment 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 far purposes of electing di- rectors: (il} The shares of stock or other units of common ownership interest in the subsidiary, .joint venture, or partner- ship entity held by the ANC and by holders pf its Settlement Common Stock represent a major#ty of both the total equity of the entity and the total voting power of the entity far the pur- pose of electing directors, the genera] partner, or principal officers; and (iii) The subsidiary, joint venture, or partnership entity has been certified by the Small Business Administration under the ${a} or small disadvantaged business program. (2) As a recipient to wham an ANC- related entity applies For certification, you do not use the DOT uniform appli- cation form (see Appendix F of this part). You must obtain from the firm documentation sufficient to dem- onstrate that entity meets the require- ments of paragraph (i} (1) of this sec- tion. 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) ^f this section, then it must meet the requirements of paragraph (h) of this section in order to be certified, an the same basis as Firms owned by In- dian Tribes or Native Hawaiian Organi- zations. ~fi4 FR 5128, Fab. 2, 1999, as amended at 68 FR 35555, June 16, 200$] Subpart E~ertification PfOCeC~i11@5 4 26.61 What are the requirements for Unified Certification Programs? (a) You and all other 17OT recipients in your state must participate in a Unified Certification Program {(.;CP). 49 CFR.Subtitle A (~0-1-04 Edition} (1) Within three years of March 4, 1999, you and the other recipienu in your state must sign an agreement es- tablishing the UCP for that state and submit the agreement to the Secretary for approval, The Secretary may, on the basis of extenuating circumstances spawn by the recipients in the state, extend this deadline for no mare than one additional year. (2) The agreement must provide far the.establishrnent of a UCP meeting all the requirements of this section. The agreement must specify that the UCP will follow all certif#cation 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 direc- tives and guidance concerning certifi- cation matters. The agreement shall also commit recipients to ensuring that the UCF has sufficient resources and expertise to carry out the require- ments of this part, The agreement shall include an implementation sched- ule ensuring that the UCP is fully oper- ational no later than 1$ months fol- lowing the approval of the agreement by the Secretary. (3) Subject to approval by the Sec- retary, 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 tv the recipients in the state for revisions. A complete agreement which is oat disapproved or remanded within I80 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 oat be met and why meeting the deadline was beyond your control. if you fail tv make such an ex- planation, or the explanation does not justify the failure to meet the dead- line, the Secretary shall direct you to complete the required action by a date certain. If you and the other recipients fail to carry nut this direction in a timely manner, you are collectively in noncompliance tti-ith this part. 290 office of the Secretary of 'frans~ortation (b} The UCP shall make all certifi- cation decisions an behalf of all DDT recipients in the State with respect to participation in the DDT DBE Pro- gram. (1} Certification decisions by the UCP shall be binding on all DDT recipients within the state. (2} The UCP shall provide "one-stop snapping" to applicants far certifi- cation, such that an applicant is re- quired 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 non- discrimination must be carried out by UCPs, and recipients may use only UCPs that comply with the certifi- cation and nondiscrimination require- ments of this part, (c} A!l certifications by UCPs shall 6e pre-certifications; f.e., certifications that have been made final before the due date far bids or offers on a contract on which a firm seeks to participate as a DBE, (d} A UCF is not required to process an application for certification from a firm having its principal place of busi- ness 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 informatiari and docu- ments concerning the firm with other UCPs that are considering the firm's application. (e} Subject to DDT. approval as pro- vided in this section, the recipients in two yr mare states may forma re- gional 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 Snto agree- ments with other recipients, an a re- gional or inter jurisdictional basis. to perform certification functions re- quired by this part, You may also grant reciprocity tv other recipient's certifi- cation decisions. (g} >rach UCP shat] maintain a uni- fied DBE directory containing, for all § 2b.83 firms certified by the UCP {including those from other states certified under the provisions of this section}, the in- formation required by §26.31. The UCP shall make the directory available to the public electronically, an the Inter- net, as well as in print. The UCP shall update the electronic version of the di- rectory by including additions, dele- tions, and other changes as soon as they are made. (h} Except as otherwise specified fn this section, all provisions of this sub- part and subpart D of this part per- taining to recipients also apply tv UCPs, X26.88 What procedures do recfpieats follow in waking cortii=icatiaa deci- eioas7 (a) You must ensure that only firms certified as eligible DBEs under this section participate as DBEs in your program. (b} Yau must determine the eligi- bility of Firms as DBEs consistent with the standards of subpart D of this part, When a UCP is formed, the UCF must meet all the requirements of subpart D aF this part and this subpart that re- cipients are required to meet. (c} Yau must take all the fallowing steps in determining whether a DBE firm meets the standards of subpart D of this part: (i} Perform an an-site visit to the of- fices of the firm, Yau must interview the principal officers of the- firm and review their resumes andlor work his- tories, You must also perform an an- site visit tv 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. Yau may rely upon the site visit report of any other recipient with respect to a firm applying For certification; (2) if the firm is a corporation, ana- lyze-the ownership of stack in the firm; (3} Analyze the bonding and Financial capacity of the firm; (4} Determine the work history of the firm, including contracts it has re- ceived and work it has completed; (5} Dbtain a statement from the Firm of the type of work it prefers to per- form as part of the DBE program and its preferred locations for performing the work. if any; 29l § 26.83 (fi} Obtain or compile a list of the equipment owned by or available to the firm and the licenses the firm and its key personnel possess to perform the work it seeks to do as part of the DBE program: (7) Require potential DBEs to com- plete and submit an appropriate appli- cation form, unless the potential DBE is an SBA cerkified firm applytng pur- suank to the DOTISBA MOU, (i} You must use the application form provided in Appendix F to this part without change ar revision, However, you may provide in your DBE program, with the approval of the concerned op- erating administration, far supplementing the form by requesting addttiana! information not incon- sistent with this part. (11) You must make sure that the ap- plicant attests to the accuracy and truthfulness of the information an the application form. This shall be done ei- ther in the Form of an affidavit sworn to by the applicant before a person who is authorized by state !aw to admin- ister oaths ar in the form of an unsworn declaration executed under penalty of pe{jury of the laws of the United States, (iii) You must review all information on the form prior to making a decision about the eligibility of the firm. (d) When another recipient, in con- nection 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 avail- able to the other recipient. (e} When another DOT recipient has certified a firm, you have discretign to take any of the following actions: (1} Certify the Firm in reliance an the certification decision of the other re- C1p1enL; (z} Make an independent certiFicatian decision based on documentation pro- vided by the other recipient, aug- mented by any additional information you require the applicant to provide; or {3} Require the applicant to go through your application process wit}r out regard to the action of the other recipient. 49 CFR Subiitte A (1D•-1-0d EdHion) (f] Subject to the approval of the con- cerned 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 disclo- sure to unauthorized persons informa- tion gathered as park of the certifi- caClon process that may reasonably be regarded as proprietary ar other con- fidential business ,information, con- sistent with applicable Federal,- state, and local law. (h) Once you have certified a DBE, it shall remain certified for a period of at least three years unless and until. its certification has been removed through the procedures of § 28,87. You may not require DBBs to ceapply for certifi- cation as a condition of continuing to participate in the program during this three-year period. unless the factua] basis an which fire certification was made changes. (1) 1f 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 sta- tus, ownership, or control require- ments of this part or any material change in the information provided in your application form, (1) Changes in management responsi- bility among members of a limited li- ability company are covered .by this re- quirement. (2) You must attach supporting docu- mentation describing in detail the na- ture of such changes, (8} The notice must take the form of an affidavit swarm 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 § 2S.1fl9(c}. (j) If you are a DBE. you must pro- vide to the recipient, every year on the anniversary of the date of your certiFi- catlon. an affidavit sworn to by the firm's owners before a person ~ti•ho is authorized by state ]aw to administer 292 Office of the Secretary of Transpartat[on oaths or an unsworn declaration exe- cuted under penalty of per•,jury of the laws of the United States. This affi- davit must affirm that there have been no changes in the firm's circumstances affecting its ability to meet size, dis- advantaged status, ownership, or con- trol requirements of this part or any material changes in the information provided In its application form, except for changes about which you have noti- fied the recipient under paragraph (i) of this section, The affidavit snail spe- cifically affirm that your firm con- tinues to meet ~ SSA business size cri- teria and the overall gross receipts cap of this part, documenting tills affirma- tion with supporting documentation of your firm's size and grass receipts, IF you fail to provide this affidavit in a timely manner, you will be deemed to have failed to cooperate under ~26.1b9(c), {k) If you are a recipient, you must make decisions on applications for cer- tification within 94 days of receiving from the applicant firm all information required under this part, Yau may ex- tend this time period once, for na mare than an additional 6D days, upon writ- ten notice to the firm, explaining fully and specifically the reasons for the ex- tension. Yau may establish a different time frame in your DICE program, upon a showing that this time frame is not feasible, and sub,}ect to the approval of the concerned operating administra- tion, Your failure to make a decision by the applicable deadline under this paragraph is deemed a constructive de- nial of the application, on the basis of which the firm may appeal to DOT under § 26,69. (64 FR 5126, Feb, 2, 1999, as amended at 68 FR 35555, June ]6, 2003) § 28.84 How do r~nipcents process ap- plfcations ~bnai#ted pursuant to the DOT/8$A Mp[T? (a) When an SBA-certified firm ap- plies for certification pursuant to the DOTISBA MOU, you muse accept the certification applications, farms acid packages submitted by a firm to the SSA For either the 8(a) BD or 5DB pro- grams, in lieu of requiring the appli- cant firm to complete your own appli- cation forms and packages, The appli- cant may submit the package directly, § 2$.85 or may request that the SSA forward the package to you. Pursuant to the MOU, the 58A will forward the pack- age within thirty days. (b) If necessary, you may request ad- ditional relevant irlformatipn from the SBA. The SBA will provide this addi- tionaI material within Forty-five days of our written request. [c) Before certifying a firm based an its 8{a) BD or SDB certification, ynu must conduct an on-site review of the firm {see §26.83{c}{l)}. if the S$A con- ducted an on-site review, you may rely on the SBA`s report of the on-site re- view. In connection with this review, ynu may also request additional rel- evant information from the firm, (d) Unless you determine, based on the on-site review and information ob- tained in connection with it, that the firm does not meet the eligibility re- quirements of Subpart D of this part, you must certify the firm. (e} You are not required to process an application For certification from an SBA-certified firm having its principal place of business outside the state(s) in which you operate unless there is a re- port of a "home state" on-site review an which you may rely. (f) Yau are not required tv process an application for certification from an SSA-certified firm if the firm does oat provide products or services that you use in your DOT-assisted programs ^r airport concessions, [6B FR 35555, June 76. 2003] ~ 28.BS How do reoipiente respond to requests from DBE-certified firms or the $$A made pursuant to the DOT/$BA MOVI (a} Upan receipt of a signed, written request from aDBE-certified firm, you must transfer.to the SBA a copy of the firm's application package, You must transfer this information within thirty days of receipt of the request. (la) 1F necessary, the SBA may make a written request to the recipient for ad- ditional materials {e.g„ the report of the on-site review). You must provide a copy of this material to the SBA with- in forty-Five days of the additional re- quest. (c} You must provide appropriate as- sistance co SSA-certified Firms, includ- ing providing information pertaining 293 § 2s.as to the DBE application process, filing locations, required documentation and status of applications. (68 FR 35555, June 16, 20i}3) 126.85 What raise govern recipients' denials of initial reque&ts for cer- tification? (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 expla- nation 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, an request. (b} When you deny DBE certification to a firm certified by the SBA, you must notify the SSA in writing. The notification must include the reason For denial, (c) When a firm is denied certifi- cation, you must establish a time pe- riod of no mare than twelve months that must elapse before the firm may reapply to the recipient for certifi- cation. You may provide, in your DBE program, subject to approval by the concerned operating administration, a shorted wafting period far reapplica- tion. The ttme period for reapplication begins to run on the date the expla- nation required by paragraph {a} of this section is received by the firm. {d) When you make an administra- tively final denial of certification con- ceming affirm, the firm may appeal the denial to the Department under § 26.89. i64 FR 512fi, Feb. 2, 1999, Redesignated and amended at b8 FR 35555, June 16, 2p03) 26.87 What procedures does a recipi- ent use is remove a DSE's eligi- hllity7 (a) Fnelig#bility complaints, (1} Any per- son may file with you a written com- plaint alleging that a currently-cer- tified firm is ineligible and specifying the alleged reasons why the firm is in- eligible. Yau are not required to accept a general allegation that a firm is in- eligible or an anonymous complaint. The complaint may include any infor- mation or arguments supporting the complainant's assertion that the Cirm 3s ineligible and should not continue to d9 CFR Subtitle A {1p-3-~q Edition) be certified. Confidentiality of com- plainants' identities must be protected as provided in §2fi.it}9(b). (Z) You must review your records concerning the firm, any material pro- vided by the firm and the complainant, and other available information. You may request additional information from the firm or conduct any other in- vestigation that you deem necessary. (3} If you determine, based an this re- view, 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 ineli- gible, setting forth the reasons for the proposed determination, If you deter- mine that such reasonable cause does not exist, you must notify the com- plainant 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 an which each reason is based. {b) Recipient-iniClated procesdirtgs. If, based on notifscatian by the firm of a change in its circumstances or other information that comes to your atten- tion, you determine that there is rea- sonable cause to believe that a cur- rently certified firm is ineligible, you must provide. written notice to the firm that you propose to Find the firm ineli- gible, setting forth the reasons far the proposed. determination. 't'he 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) 1f the concerned operating adminis- tration determines that information in your certification records, or other in- formation available to the concerned operating administration, provides rea- sonable cause to bel€eve that a firm you certified does oat meet the eligi- bility criteria of this part, the con- cerned operating administration may direct you to init€ate a proceeding to remove the firm's certification. (2} The concerned operating adminis- tration must provide you and the firm a notice setting forth the reasons far the directive, including any relevant documentation or other information. 291 Office of the Secretary of 7ranspodatian (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 re- move 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 far the proposal tv remove its eligibility in person and provide information and ar- guments concerning why it should re- main certified. (1) In such a proceeding, you bear the burden of proving, by a preponderance of the evidence, that the Firrn does not meet the certification standards of this part, (2) You must maintain a complete record of the hearing, by any means ac- ceptable under state law fne the reten- tion of a verbatim record of an admfn- istrative hearing. If there is an appeal to DOT under § 26.88, you must provide a transcript of the hearing to DOT and, on request. to the firm. You must re- tain the original retard of the hearing. You may charge the firm only for the cost of copying the record. (3) The firm may elect to present in- formation and arguments in writing, without going to a hearing, In such a situation, you hear the same burden of proving, by a preponderance of the evi- dence, 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 pro- ceeding 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 fsam the office or per- sonnel who did take part in these ac- tions. (1) Your method of implemen[ing this requirement must be made part of your DBE program. (2) Tice decisionmaker must be an in- dividua] who is knowledgeable about the certification requirements of your DBE. program and this part. (3) Before a LCP is operational in its state, a small airport or small transit § 26.87 authority (i.e„ an airport or transit au- thority serving an area with less than 250,OU0 population) is required to meet this requirement only to the extent feasible. {f) Grounds for decis}on. You must not base a decision to remove eligibility pn a reinterpretation or changed. opinion of information available to the recipi- ent at the time of its certification of the firm, You may base such a decision only on one ar more of the fallowing; {1) ,Changes in the firm's cir- cumstances since the certification of the firm by the recipient that render the firm unable to meet the eligibility standards of this part; {2) Information ar evidence not avail- able to you at the time the firm was certified; (3) Information that was concealed or misrepresented by the firm in previous certification actions by a recipient; (4} A change in the certification standards or requirements of the De- partment since you certified the firm; ar (5} A documented ftnding that your determination to certify the firm was Factually erroneous. {g} Notice of decision. Following your decision, you must provide the Firrn written notice of the decision and the reasons far it, including specific ref- erences to the evidence in the record that supports each reason for the deci- sion. '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 in- eligibility complaint or the concerned operating administration that had di- rected you to initiate the proceeding. (h) When you decertify a DBE firm certified by the SBA, you must notify the 5BA in writing. The notification must include the reason for denial. (i) Status of firm during proceeding. (i) A firm remains an eligible DBIw during the pendency of your proceeding tv re- move its eligibiliry. (2) The firm does not became ineli- gible until the issuance of the notice provided for in paragraph ig) of this section. 295 § 25.89 (j) Effects of remova! 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 ineli- gible firm, or you have made acommit- trtent to using a ASE prime contractor, but a subcontract or contract has not been executed before you issue the de- certification notice provided for in paragraph (g} of this section, the ineli- gible firm does not count toward the contract goal ar overall goal. You must direct Ctrs prime contractor to meet the contract goal with an eligible DBE firm ar 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 ineligi- bility, the prime contractor may con- tinue to use the Firm on the contract and may continue to receive credit to- ward 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 por- tion of the ineligible firm's perform- ance of the contract remaining after you issued the notice of its ineligi- bility shat] not count toward your overall goal, but may taunt toward the contract goal. (3} Exception; If the DBE's ineligi- bility is caused solely by its having ex- ceeded the size standard during the performance of the contract, you may continue to count !ts participation on that contract toward overall and con- tract goals. (k) Availability of appeal, When you make an administratively final re- mavaI of a Firm's eligibility under this Section, the firm may appeal the re- moval to the Department under § 2&.89. 16; FR 5126, Feb, 2, 1999, as arrsanded a[ 66 FR 35556, .Lune 16, 2003] q 26.89 What is tlsa process for certif!- cation appeals to the Iepartment of Traneportation7 {a){1) If you are a firm that is denied certification or whose eligibility is re- moved by a recipient, including 5BA- certified Firms applying pursuant to the DdTiSBA hiOLI, you may make an administrative appeal to the Depart- ment. 49 CFR Subtitle A {ia-1-04 Edition} (2) If you are a complainant in an in- eligibility complaint to a recipient {in- cluding the concerned operating ad- ministration in the Grcumstances pro- vided in §28.87(c)}, you may appeal to the Department if the recipient does not find reasonable cause to prppose re- moving the Firm's eligibility ar, fol- lowing a removal of eligibility pro- ceeding. determines that the firm is el- igible. (3) Send appeals to the fallowing ad- dress: Iepartment of Transportation, office of Civil Rights, 400 7th Street, SW, Raom 5414, Washington, DC 20590. (b) Pending the Department's deci- sion in the matter, the recipient's deci- sion remait-s in effect, The Department does not stay the effect of the recipi- ent'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 recipi- ent's final decision, including informa- tion and arguments concerning why the recipient's decision should be re- versed. The Department may accept an appeal filed later than 90 days after the date of the decision if the Department determines that there was good cause for the late filing of the appeal. (1) If you are an appellant who !s a firm which has been denied certifi- cation, whose certification has •been re- moved, whose owner is determined not to be a member of a designated dis- advantaged group, or concerning whose owner the presumption of disadvantage has been rebutted, your letter must state the name and address of any other recipient which currently cer- tifies the firm, which has rejected an application far certification From- the firm or removed the firm's eEigibility within one.year prior to the date of the appeal, or before which an application for certification ar a removal of eligi- bility is pending. Failure to provide this information may be deemed a fail- ure to cooperate under§26.109(c). (2} If you are an appellant other than one described in paragraph {c)fl} of this section, the Department wiE] request, and the firm whose certification has been questioned shall promptly pro- vide, the information called For in paragraph (c}(1) of this section. fiai[ure to provide this information may be 296 4ffice'of the Secre#ary of TransiOOiiatian deemed a failure tv cooperate under (d} When it receives an appeal, the Department requests a copy of the re- cipient's complete administrative record in the matter, if you are the re- cipient, you must provide the adminis- trative record, including a hearing transcript, within 20 days of the De- partment's request, The Department may extend this time period on the basis of a recipient's showing of good cause. Ta facilitate -the Department's review of a recipient's decision, you must ensure that such administrative retards are well organized, indexed, and paginated. Records that do not comport with these requirements are not acceptabie and will be returned to you to 6e corrected immediately. If an appeal is brought concerning one re- cipient's certification decision con- cerning a firm, and that recipient re- lied an the decision andlpr administra- t~ve record of another recipient, this requirement applies to both recipients involved. (e} The Department makes its deci- sion based solely an the entire adminis- trative record. The Department does not make a de novo review of the mat- ter and does not conduct a hearing. The Department may supplement the administrative record by adding .rel- evant information made available by the DOT Office 6f inspector General; Federal, state, or local !aw enforce- ment authorities; officials of a DOT op- erating administration or other appro- priate DOT office; a recipient; or a firm or other private party. (f) As a recipient, when you provide supplementary information to the De- partment, you shall also make this in- formation available to the firm and any third-party complainant involved, consistent with Federal or applicable state laws concerning freedom of infar- matinn and privacy, The Department makes available, on request by the Firm and any [hard-party complainant involved, any .supplementary informa- tion it receives Pram any source. (1} The Department affirms your de- cision unless iC determines, based on the entire administrative record, that your decision is unsupported by sub- stantial evidence or inconsistent with the subs[ar~tive or procedural provi- § 26.89 lions of this part concerning certifi- cation. (2} If the Department determines, after reviewing the entire administra- tive record, that your decision was un- supported by substantial evidence or inconsistent with the substantive or procedural provisions of this part con- cerning Certification, the Department reverses your decision and directs you to cart#fy the ffrrn pr remove its eligi- bility, as apgropriate. You must take the action directed by the Depart- ment's decision immediately upon re- ceiving written notice of it, (3} The Department is not required to reverse your decision if the Depart- ment determines that a procedural error did not result in fundamental un- fairness to the appellant or substan- tiaily prejudice the opportunity of the appellant to present its ease. {q} If it appears that the record is in- complete 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 instruct#ans seeking clarifica- tion or augmentation of the record be- fore making a finding, The Department may also remand a case to you For fur- ther proceedings consistent with De- partment instructions concerning the proper application of the provisions of this part. (5} The Department does not uphold your decision based an grounds not specified fn your decision. (fi} The Department's decision is based an the status and circumstances of the ffrrn as of the date of the deci- sion being appealed. (7) The Department provides written notice of its decision to you, the Firrn., and the complainant in an ineligibility complaint, A copy of the notice is also sent to any other recipient whose ad- ministrative record. nr decision has been involved in the proceeding {see paragraph (d} of this section}, The De- partment will also notify Che 5BA 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,includ- ing specific references to the evidence in the record that supports each reason For the decision. zs7 § 2b.91 (8} The Department's policy is to make its decision within 1B0 days of re- ceiving the complete administrative record. If the Department does not make fts decision within this period,. the Department provides written no- tice to concerned parties, including a statement of the reason far the delay and a date by which the appeal decision will be made. (p~ All decisions under this section are administratively final, and are not subject to petitions for reconsider- ation. 164 FR 5126, Feb. 2, 1999, as amended at 65 FR $8951, Nov. 15, 20pp; 6$ FR 35556, 3une ]6, 2093] § 26.91 What actions dio reci~iente talcs following D07' aortifieatlan appeal decisions? {a} iF you are the recipient from whose action an appeal under §26,88 is taken, the decision is binding. It is not binding ^n other recipients, {b} If you are a recipient to which a DOT determination under §26.89 is ap- plicable, you must take the fallowing action: (1} if the Department determines that you erroneously certified a firm, you must rernove the firm's eligibility on receipt of the determination, with- out further proceedings on your part. Effective on the date of your receipt ^f the Department's determination, the consequences of a removal of eligibility set forth in § 26.87(1) take effect, (2) If the Department determines that you erroneously failed to find rea- sonable cause to remove the firm's eli- gibility, you must expeditiously com- mence a proceeding to determine whether the firm's eligibility should be removed, as provided in §26,67. (3} ;f the Department determines that you erroneously declined to cer- tify ar removed the eligibility of the firm, you must certify the firm, effec- t[ve on the date of your receipt of the written notice of Department's deter- mination, (4) if the Department determines that you erroneously determined that the presumption of social and eco- nomic disadvantage either should or should not be deemed rebutted, you must take appropriate corrective ac- tion as determined by the Department. 49 CFit Subtitle ~, (10-1-04 Edition) (5} if the Department affirms your determination. no further action is necessary, {c} Where DpT has upheld your de- vial of certification to or removal of eligibility from a firm, or directed the removal of a firm's eligibility, other recipients w#th whom the firm is cer- tified may commence a proceeding to remove the firm's eligibility under § 26.87. Such recipients must not re- move the firm's eligibility absent such a proceeding. Where DOT has reversed your denial of certification to yr re- moval of eligibility from a firm, other recipients must take the DOT action into account in any certification ac- tion involving the firm, However, other recipients are not required to certify the firm based an the DOT decision. Subpart F-Compiipnce and Enforcement § 26.1D1 Wlsat eomplia>ace proceduree apply to recipients? (a) If you fail to comply with any re- quirement of this part, you may be subject to formal enforcement action under §26.303 or §Z6.iD5 or appropriate program sanctions by the concerned operating administration, such as the suspension ar 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 pro- gram, actions provided far under 23 CFR I.36; in the case of the FAA pro- gram, actions consistent with 49 11.5.C. 47301i(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 pravsded in statute, you will not be subject to compliance actions ar sanctions far failing t^ 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 unconstitu- tional. § 2fi.103 What enforcement actions apply in FI4.4YA and FTA programs? The provisions of this section apply to enforcement actions under FHbVA and FTA programs: 29$ Office of the 5ecretcxry of 7ransportatlon (a) Noncompliance cpmplalnts, Any person who believes that a recipient has failed to comply with its obliga- tions under this part may file a written complaint with the concerned oper- ating administration's Office of Civil Rights. If you want to file a complaint, you must do so no later than 1B0 days after the date of the alleged violation or the date on which you learned of a continuing course of conduct in viala- tian 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 Of- fice of Civil Rights may protect the confidentiality of your identity as pro- vided in $ 26.I09{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 an-site reviews, as ap- propriate. The Office of Civil Rights may direct the operating administra- tion to initiate a compliance review based on complaints received. (c} Reasonable cause notice, 1f it ap- pears, From the invest#gation of a com- plaint or the results of a compliance review, that you, as a recipient, era in noncompliance with this part, the ap- propriate DOT office promptly sends you, return receipt requested, a writ- ten notice advising you that there is reasonable cause to find you in non- compliance. The notice states the rea- sons for this finding and directs you to reply within 3D days concerning wheth- er you wish to begin eonciliation. {d} Conclllatlnn, {1) IFyou request con- ciliation, the appropriate DOT office shall pursue eonciliation for at ]east 3Q, but not moFe than 120, days from the date of your request. The appropriate DOT office may extend the conciliation period for up to 34 days for goad cause, consistent with applicable statutes. (Z) If you and the appropriate DOT of- fice sign a ctnciliation agreement, then the matter is regarded as closed and you are regarded as being in com- plfance. The conciliation agreement sets forth the measures you have taken or ~~•ill take to ensure compliance. While a conciliation agreement is in ef- § 26.107 feet, you remain eligible For FHWA or FTA financial assistance. (3) The concerned operating adminis- tration shall monitor your implemen- tation 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, ar a conciliation agreement is not signed within the time provided in paragraph (d)(1} of this section, then enforcement proceedings begin, (e) Enforcement acdans. (1) Enforce- ment actions are taken as provided in this subpart. (2} Applicable Findings in enforce- ment proceedings are binding on all DOT offices. ~ 2fi.106 What enforcement aatiome apply in FAA programs? (a) Compliance with all requirements of this part 6y airport sponsors and other recipients of FAA financial as- sistance is enforced through the proce- dures of Title 49 of the united States Cade, including 49 U.5.C. 471Qii(d), 471I1(d), and 47122, and regulations im- plementing them, (b) The provisions of §28.103{b) and this section apply to enforcement at- tians in FAA programs. (c) Any parson who knows of a viola- tion of this part by a recipient of FAA funds may file a complaint under 14 CFIt part 18 with the Federal Aviation Administration Office of Chief Counsel, ~ 28.107 What enforcement actions apppply to firms participating in the DBF; program? (a} If you are a firm that does not meet the eligibility criteria of subpart D of this part and that attempts to par- ticipate in aDOT-assisted program as a DHE on the basis of false, fraudulent, ar deceitfu] statements ar representa- tions or under circumstances indi- cating aserious ]ack of business integ- rity or honesty, the Department may initiate suspertision ar debarment pro- ceedings against you under 49 CPR part Z9. (b) If you are a firm that, in order to meet DBE contract goals ar other DBE program requirements, uses or at- tempts t^ use, on the basis of False, 299 ~26.D09 fraudulent or deceitful statements or representations or under circumstances indicating a serious lack of business in- tegrity 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 49 CFR part 29. (c} In a suspension or debarment pra- ceeding brought under paragraph (a) or (b) of this section, the- concerned oper- ating administration may consider the fact that a purported i7BE .has been certified by a recipient. Such certifi- cation does not preclude the Depart- ment from determining that the pur- ported DBE, nr another firm that has used or attempted to use it to meet DBE goals, should be suspended or debarred, (d) The Department may take en- forcement 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 k8 LJ.S.C. Jffi71 or other applicable provisions of law. any person who makes a false ar fraudulent statement in connection with participation of a DBE in any DOT-assisted program .or otherwise violates applicable Federal statutes. § 26.108 What are the rules oaerning information, confidentie~ty, aa- operation, and intimidation or re- talf ation7 (a) Availa6tlity of records. {1) In re- sponding to requests for information concerning any aspect of [he DBE pro- gram, the Department complies with provisions of the Federal Freedom of Information and Privacy Acts (5 U.5.C. 552 and 552a). Tlie Department may make available to the public any infor- mation concerning the DBE program release of which is not prohibited by Federal law. (2) lrlatwithstanding any provision of Federal ar state law, you must not re- lease information Chat may be reason- ably be construed as tonfidential busi- ness information to any third party without the written consent of the firm ehat submitted, the information. This 49 CFR Subtitle A (1r~1-04 Edition) includes applications for DBE certifi- cation and supporting documentation. However, you must transmit this infor- mation to DlaT.in soy certification ap- peal proceeding under § 25.89 in which the disadvantaged status of the indi- vidual isYn question. (b) Gonfidentiality of information an complainants, Notwithstanding the pro- visions of paragraph {a) of this section, the identity of complainants shall be kept confidential, at their election. 1F such confidentiality will hinder the in- vestigation, proceeding or hearing, nr result in a denial of appropriate admin- istrative due process to other parties, the complainant must be advised for the purpose of waiving the privilege, Complainants are advised that, in same circumstances, failure to waive the privilege may result in the closure of the investigation ar dismissal of the proceeding or hearing, FAA follows the procedures of 14 CFR part 18 with re- spect to confidentiality of information in complaints. (c) Cooperation All participants in the Department's DBE program (in- cluding, but not limited to, recipients, DBE firms and applicants for 37$E cer- tification, complainants and appel- lants, and contractors using DBE firms to meet contract goals) are required to cooperate fully and promptly with DOT and recipient compliance reviews, cer- tification reviews, investigations, and other requests for information. Failure to do sa shall be a ground far appro- priate action against the party in- volved (e.g„ with respect to recipients, a finding of noncompliance; with re- spect to DSE firms, denial of certifi- cation or removal of eligibility andlor suspension and debarment; with re- spect to a complainant ar appellant, dismissal of the complaint or appeal; with respect to a contractor which uses DBE firms to meet goals, findings of non-responsibility far future contracts anchor suspension and debarment). (d) Indmidatian and reraliatinn. If you are a recipient, contractor, ar 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 ar because the individual or firm has made a complaint, testified, 30p ~tiice of the Secretary cf Transportation assisted, or participated in any manner in an investigation, proceeding, or hearing under this part, If you violate this prohibition, you are in noncompli- ance with this part, i64 FR 5128, Feb. 2, 1899, as amended at 68 h'R 35556, .]une ]6, 2003] APPENplX A TO PART 2b-GUIDANCE CONCERNING GOOD FAlTFI EFFORTS I, When, as a recipient, you establish a contract goal an aDOT-assisted contract, a bidder must, in order to be respanslble andl or responsive, make good faith efforts to meet the goal. The bidder can meet this re- quirement in either of two ways, First, the bidder can meeC the goal, documenting cam- mitments for participation by DH>r -firms sufficient far this purpose. Second, even if 1C doesn't meeC the goai, the bidder can docu- mentadequate good faith efforts. This means that the bidder must show that it took ail necessary and reasonable steps to achieve e DBE goal ar other requirement of this part which, by their scope, intensity, and appro- priateness to the objective,cauid reasonably be expected to obtain sufficient DBE partici- pation, even if they were not fully success- ful, II. In any situation in which you have es- tablished acontract goal, part 26 requires you to use the good faith efforts mechanism of this part, As a recipient, it is up to you to make a felt and reasonable Judgment wheth- er abidder that did not meet the goal made adequate good faith efforts. IC is LrnportanC far you to consider the quality quantity, and intensity of the different kinds of efforts that the bidder has made, The efforCS em- ployed 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 i'arnra efforts are not good faith efforts to meeC the DBE contract requirements. We emphasize, however, that your determina• tion concerning she sufficiency of the firm's good faith efforts is a judgment tail: meeting quantitative formulas is not required. III. The Department also strongly cautions you against requiring that a bidder meet a contract goal {i.e., obtain a specified amount of DHE participation) En order to be awarded a contract, even though the bidder makes an adequate good faith efforts showing. This role speclfltally prohibits you from ignoring bona >ide good faith efforts. IV. The fo3lowing is a list of types of ao- bons which you should consider as part of the bidder's good faith efforts to obtain ABE participation. Ic is not intended to be a man- datory checklist, nor is it intended to be ex- clusive or exhausti~~e. Other factors ^r types Pt. 26, app, p, of efforts may be relevant in appropriate cases, A, Soliciting through all reasonable and available moans {e.g, attendance at pre-bid meetings, advertising andlor written notices( the interest of aEl certified DBEs who have the capability to perform the work of the contract, The bidder must solicit this inter- est within sufficient time to allow the DFdEs to respond to the sollcitatlan. The bidder must determine with certainty if the DH>:.s are interested by taking appropriate steps to fo!]ow up Initial solicitations. B. Selecting portions of the work to be per- formed by DBEs in order to increase the likelihood that the DBE goals wll! be achieved. This includes, where appropriate, breaking nut contract work items into eco- nomically feasible units to facilitate DHE participation, even when the prime con- tractor might otherwise prefer to perform these work items with its awn forces. C, Providing interested DBEs with ade- quate lnformatian about the plans, specifica• tions, and requirements of the contract in a timely manner to assist them In responding to a solicitation, D. (1} Negotiating !n good faith with inter- ested DBEs, It is the bidder's responsibility to make a portion of the work available to DBE subcontractors and suppliers and to se- lect thane portions of the work or material needs consistent with the available DHE sub- contractors and suppliers, so as to Facilitate DBE participation. Evidence of such negotia- tion includes the names, addresses, and tele- phone numbers of DHEs that were consid- ered; a description of the infarmatlon pro- vided regarding the plans and specifications for the work selected far subcontracting; and evidence as to why addltioneil agreements could not be reached for DBEs to perforni the work. {2} A bidder using good business Judgment would consider a number of factors in negati- attng with subcontractors, including DBE subcontractors. and would take a firm's price and capabili[les as well as contract goals into consideration, However, the fact that there may be same additional costs ln- valved in finding and using DBEs is not in itself sufficient reason far a bidder's (allure to meet the contract DBE goai. as long as such ease are reasonable, Also, the ahifity or desire of a prime contractor to perform the work of a contract with its own organiza- tion does not re3leve [he bidder of the re- sponsibility to make goad faith efforts. Prime contractors are not, however, required to accept higher quotes from DBEs if the price difference is excessive or unreasonable. E. NoC rejecting DBEs as being unqualified without sound reasons based on a thorough investigation of their capabilhles. The con• tractor's standing within its industry, mem- bership in specific groups, organlza[ions, or 301 Pt. 2~, App. A assaclations and pnliticai or saclal afflli- ations (for example union vs. nnn•union em- pioyee status) are not legitimate causes for the refection or non-solicitation of 61ds in the caniractnr's efforts to meet the protect goal. - F. Making efforts to assist interested bBEs in abtalning bonding, ]uses of credit, ar In- surance as required by the reciptent pr con- tractor. G, Making efforts to assist interested I3fiEs in obtaining necessary equipment, sup- plies, materials, or related assistance or ServlCeS. H. Effectively using the services of avail- able minoritylwamen community organiza- tions; minoritylwomen contractors' groups; local, state, and Federal minorltyh5romen business assistance offices; and other organi- 49 CFR Subtitle A (]~]-04 Editton> zation5 as allowed on a case-by-case basis to provide asslstance in the recruitment and placement of D66s. V, in determining whether a bidder has made good faith efforts, you may take Into account the perFarmance of other bidders in meeting the contract. 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 addltlonal reasonable efforts, the appar- ent successful bidder could have met the goal. if the apparent successfu] bidder fails to meet the goal, but meets ar exceeds the average DBE participation obtained by other bidders, you may view this, in confunction with other factors. as evidence of the appar- ent successful bidder having made good faith efforts, ~Oz Office of the Secretary of Transportation P1.26r App. B r3.PPENDE7C I3 TO PART 26-UNIFORM REPORT OF T)BE AWARDS OR Gt]tiSMITMENTS AND PAYwiENTS FORM F4A Cf3ffiPLETIKC THE UN1F6P.d1 REPOT PAYh1EN7Yi w, •apmunfl nammnrrsnan rerRr utu prvvmes your PedeN 6aaneid auisunee. if w4r.nee aobcs fmm more that one DA, use seprnia nymring ferrea Poe each OA. ]f yni .s: an FTA rcripiem, itali¢ae yaw Vanrbr Numlaer in dte apxe pmwded 2.. If you see N FM rcefpieay 4rdiwe Iha relevan+ A1P Numbma coveted by Otis tappet. I! amrr than aqt, .teach a repanre ahee+. 3. Speelfy the Federal Aac+l Year li.e., Dseober 1 -September 16) i n which +he catered rcpening period 4t1a, 4. Sratc the dau pf rtpmlaivn of rho repon. S. Check tlr appmpriap bex Ih.t indleaua the reposing period +hat dte dau gmvidrd in this repon rovan. Fl rho rvpan is due )uns 1, dau rhauld eova Pemba I -Much 31. ]f 1h1r repon is due necemE+a 1, data ahvuld rover April 1 - fiepeeanba 30. If this report it due tv the PAA, dau tbvuld cover the mire year. 6. Name of rk recipimt¢ 7. Hwe year nmwl D8E goat(s) mtahkished for the Federal fists! yea of this noun m he auhmioed tp .tnl aPProvad by rift relevant OA Yew 6rcn11 pod Ism 6e reported u well a. the hrcakdewn fur specific Raec Cnrtseivua and Rave Neutral Gmh (Eoth of which include grndaconrclouslneuua! goalf). The Race Conmlous Anal ponlna :tsauld he i+tued ev pmgsnms true focus on and pravlde 6rnetiu vnty far DBFi Ths ran of eontraet peals it a primary example of a Ras tomviom measun. 71tc °•". Nahv[ Goai ponian she¢1d include pragnmr flat, whikv 6enaAiing DBEs are nvl avloly laewad on DBE Iirma. For awmple, a mall hua[nees nutrmeh program, teehniul usfstanea, and prompt payuen[ clause can scar s wide vadcry oC 6minerces in addiliaa to helping DAE fmns. R•0. 71te arnoanu in Items fi[A}4(1) ahvuld include all iypet of prime convaeu awarded end dl ryes of xubevmucu awarded or evsamiued, including: profminrol or eartaultwt cmlcea, emtrvedaa, pttrchue of materials or supplies, Ime or pumhas of equipmens end any other types of aprvicn. All dollar vmaunu arc Iv rcllwt only the Federal shah of rush codtnev, .rid should be rounded ea ehe neuess dvtlos. gIA). Provide the snuff dell.. amnnne for all puma enntneu assined wnh kXYC Ponds Thu vrae awarded luting rho repenine period. 8lR). Provide the tout number of all prime eamnen auuud wnh DDT f ndt that wcts awarded during [hu reponmg penal. g4C~• From the tool dollar amerce awude6 b uem flew), Provide ehe dv1laL,lIDg8lli awarded m eenifieel DBEs fusing tNs reppmng penpd. BID). From the tool number of prime contnrn awarded in Team fllS), opacity the AYWSZBr sealed m cenified GBFa during this repvning pmod. Bik7. From the foul dvllan awarded in BSC), pmvrde rite dLL)1aL BrhCLBI awarded p pBEc ihpuph the use of Rape Comc+ous ravrhoda Sn the dafimrioo pf Ass Cvruciaw Gael M item 7 end rite caP]arudvn at pmjee[ types in isem 8 m include ra Yaur calcuhtian HIF7. Prom the tool number of prime comm~e aw•Nda4 m 6SD}, spenfy the pymy8f awm;kd m DBF~ thrvvgh Aaec Coneci~us rccsh¢ds. a[V} tram me poi 4a1W amaanl awarded In rlsm FNC), proyidc doe donv . nux+ warded m muted DREe d+tavgh 8re uie of Raea Neua.l rr+nhrrla gae the daRnitken of Race Naurnl owl in item 7 sad the aplaaatim of Pro}eet rypw m item 9 so ipeludr. 8(ii). Prom the mul nvtnhv df prima avaliacp awarded in 8{D), specify flea apr-het awaNed to DBEr dvaugh Hate Nauasl tvelhadr. 8q). Of alk prime nronaaear awarded Ihia mpvrNng period, calemlare the namearaee going 1¢ -eFi Divide the dollar amptmt in item f[Cy by dte dn11v rmvunt in Itpn if A) to derive This pwrcenugr. Round peresauge m the newt tenth. 9(A}4{I). ]coos 9(A}p(p K derived in the carve way ae itcau fl(A} 61q, except that thou catntladaw rhnpld lx btwed on aubcoarnca ntlrer Ihatr primp eaaoacu, UoBke prime epnRarp, wAkcls may only 6e awarded, aubwmr.ch may 6e either awarded er coslunitbd ILIA}11f1} FM all nBFa awardp0 prime convuea phd awarded yr coramived ruhceotnen ss indieapd in BICHD) and 9lCf~(D), 6rak the dap derwa ftutha hY foal dally amaune a well u the ntavbnr of J] cvnc'aea gulag m racA alhvic pave u well u b sera- minoriry vvmves. The "Grhet" ntegery include rhate 17E& who are not memban vT the gteauuptlvrJY dindvanpgad gronpt steady Ilxed, h¢r who ae daerminsd aRgi6le fm the DBE progsara pn sn Individtal 6aair fag. a Caueuirn mate W dt a dira6lllry}, Tha TOTALB value In kp{y) aheuld equal thewm of 8[47 pltu 4147, and cimi]arlY, rho TOTALS value la 111H) should equal the sum of B(D) plus 4(U). Column 1 should only ~ lklhd our If This repan is doe tm December f, u indicated m item i, fie whin fur this column ors derived by adding the vduea rcppned in co)umn H in your fins rcpon wire the values rsparred In Chia second scpdn. II[A). Provide rhv tool number of prime conmaa ~epmplctcd dwiag Chia rcponing period dot had Race Curtoeiovs. goals. Roca Cnwelpw eonmea ass lhoav rich mntraet goats er anveha Rau Cvnsdoua mernura. IIiB). Provide Ilse tout dollar value of prime eontncu completed thit rsponing puivd gut had Race Cvnreivus goals. ]2It}. larovide rite soul delta amount of D9E paninpation on all Race Cvna¢iow prime sonttmu evmpined thir reposing period iwr wu netaaary tv m=t the erntram goa6 art them. Thla applies only tv Race Cnvsciow prrme epntPSti. I'_iD). Pr»ndc iltc actvaE Teal 09E ysniciparion in doilan on she rice comeious primp crmaaeu eample+ed this seponing period. 12;E1. GC ail rho prime eonmaeb eomplebd leis repvning penpd, calculate the paccnuge of b8E psnicipatiea Divide fhc astwl =oral dollar smvaat m R{D) 6y the total lathe whip provided in ]SlE) m derive thir pereenugc Rauad tr the nuveai tenth. 13(A}l3(E7. Itemr IS{A}ll{ti) arc derived in tha arms msnrser a itmnr 1:{A}l7{]ij, eaRyl them figure should Ae hard op Race Veutnl peime eonuen (i.e, rlwae wiih na rata consefpw mnrwn}. IaIA}14(8), Calcuhu d+e tome fps each column 6y adding the nee canreivus and nsunal figure provided in each row above. 17, \ame of We Authotval Raprneanme prryanne lhu form 16. Btgnamm of the Avdwnacd Represainuve. 17. Phone number of ux nwMrevd Rryrescnralive. 18, Fav number of du Authenzed RrprxeeWrivc. ••SUersh your ceapkpA r+pen ss Jour Raataaal ur dhiWe prRro 3U3 Pt. 26, App, C I~ FFZ S1Z8, Feb. 2, 1999. as amended at fib FR 35558, June 15, 2603) ~PPENDI}C C 'i'0 PART 26--T]BH BUS1hEESS BEVELOP11EhT PROGR,~~I CUT]]EI,INES The purpose of this program element is to further the development of 1]B>±s, including but not limited to assisting them to move into non•Craditional areas of work andlor compete in the marketplace outside the DBE 49 CFR Subtitle A {lal-04 Edition) I _ **ge ~ 4= e W ~~ gW~ n a~ ~t, w ;; ~ 6c a _ _ n n 'e _ ~ a La ~ ~ E z s_ j 5 0 ~ ~ ~ 3 4 ~' 9 • ~ ~= a mg r s . - !~ z°~ ~ aE l~ a I{ .. y . f tl fir. d p w pp 9 i~~ a ~ ~ ~ ~ S C ~ ~ K r -~ ~ ~ ~ ,y G a ~ "' _ ~ ~$ c ae~ ~ ~9 B I ~ ~ s ~ y ~ ~ o -~y~~ ~ °~Y 4~ Is ~~ 8 '~ u ~ sWl< C ~z a~ m } ~ ~s ~ $ I I ~o ~ E I y e I ~ ~ ~4 ~ ~ ~ >n r ~ +s _ ~ v ¢ K o° h 3 @ ~ c q 8 ~ ~ ~ - a ~ ~ '~ ~ !~ ~ .f '~, !~ Y ''~ ~ 3 ~~~iii _ a - ~ i program, vla the provision of trai>ling and assistance from the recipient. (A1 Each firm that participates in a recipi• east's business development program IBDp) program is subject m a program term deter- mined by the recipient. The term should con- sist of [tvo stages: a developmental stage and a transltlonal stage. 304 Office of fhe Secretary of Transportation (13} In order for a firm Co remain eligible far program participation, it must cgnitnue to meet all eliglbklSty criteria contained in part 26. (C) Hy no ]stet than 6 months of program entry, the participant should develop and submit to the recipient a camprehenslve business plan setting Earth the partitipant's business targeu, objectives and goals. The participant will not be eligible far program benefits until such business plan Ss sub- mitted and approved by the recipient. The approved business plan will constitute the participant's shgrt and long term goals and the strategy for developmental growth to the point of economic viability in non-tradi- tlona! areas of work andlor work outside the D6E program. (D) The business plan should contaSn at least the fvilowtng: (1) An analysis of market potential, cam- petitlve environment and other business. analyses estimating the program partici- pant's prospects for protitab]e operation dur- ing the term of program participation and after graduation ft~om the program. (2) An analysis of the Pirtn's strengths and weaknesses, with particular attention paid to the means of correcting any financial, managerial, technical, or Iabvr condktians which could impede the participant from re- ceiving contracts other than those in tradi- tional areas of DBE participatign, {3} Specific targets, objectives, and goals far the business development of the partici- pant during Che next two years, utilizing the results of the analysis conducted pursuant to paragraphs (C) and {D} (i) of this appendix: {4) Estimates of tontract awards from the DSE program and t}~am other sources which are needed to meet the gbjectlves 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 re- view !ts currently approved business plan with the recipient and modify the plan as may 6e appropriate to account far any changes Sn the firm's structure and redeFlned needs. The currently approved plan should be considered the applicable plan for all prq- gram purposes until the recipient approves in writing a modified plan, The recipient should establish an anniversary date fvr re- view of the participant's huslness plan and contract forecasts. (F) Each participant should annually Fore- cast in writing its need fvr contract awards for [he next program year and the suc- ceeding program year during [he review of its huslness plan conducted under paragraph (g} of this appendix. Suth forecast should be included in the participant's business plan. The forecast should include: Pt. 2b, App. C (k) The aggregate dollar value of contracts to besought under the DSE program, reflect- ing cornplkance wSth the business plan; (2) The aggregate dollar value of contracts tv he sought in areas other than [radStlonal areas of DSE participation; (3) The types of contract opportunities being sought, based on the firm's primary line of business: and (d} Such other information as may be re- quested by the recipient to aid in providing effective business development assistance to the participant. (G) Program participation is divided into two stages; (L) a developmental stage and {2} a transitional stage. The developmental stage is designed tq oasis[ participants to overcome their socia3 and economic dis- advantage 6y 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 par- ticipation 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 far leaving the program, (H) The length of service in the program term should not be a pre-set time frame for either Che developmental or transitional stages but should he figured vn the number of years considered necessary in normal pro- gression of achieving the Firm's established gooks and objectives. The setting of such time could be factored an such items as, but not limited tv. the number of contracts, ag- gregate amount of the contract received, years in business; growth potential, etc. {;} Beginning in the first year of the transi- tional stage of program participation, each participant should annually submit for in- clusion in its business plan a transition man- agement plan outlining specific steps en pro- mgte profitable business operations in areas other than traditignal areas of DBE partici- pation after graduation From the program. The transition management plan should be submitted to the recipient at the same time other madlfications are submitted pursuant to the annual review under paragraph {E) of this section. The plan should set forth the same information as required under para- graph (F) of steps the participant will take co continue its business development after the expiration of its program term. {J} When a participant is recognized as suc- cessfully completing Lhe program lay suh- stantlally achieving the targets, objecti~~es and goals set forth in its program term. and has demonstrated the ability tp compete in the marketplace, its Further participation within the program may be determined by the recipient. ~L75 Pt. 26, App. D (K) In determinJng whether a concern has substantially achieved the goals and objec- tives of its business plan, the fallowing fac- tors, among others, should be considered by the recipient: (]} profitability; (2} Sales. Enckuding Improved ratio of non- traditional contracts to traditional-type contracts; (3) [Vet worth, financial ratios, working tapltal, capitalization, access to credit and capital; {9) Ability to obtain bonding; (5) A positive comparison of the I)$E's business and Financial profile with profiles of non-b$E businesses in the same area or similar business category; and (fi} Good management capacity and capa- bil ity. (L) Upon determination by the recipient that the participant should be graduated from the developmental program, the recipi- ent should notify the participant in writing aF its intent to graduate the firm in a letter of notification. The letter aF notification should set forth findings, based on the facts, for every .material issue relating to the basis of the program graduation with specific rea- sons for each Finding. The Setter of notiFies- tlon should also provide the participant 45 days from the date of service of the letter to submit in writing infornnetion that would ex- plain why the proposed basis of graduation Js not warranted. {M) Participation of a DBE firm in the pro- gram may be discontinued by the recipient prior to expiration of the Firm`s program term for gnpd cause due- to the failure of the firm to engage kn business practices that will promote its competitiveness within a reason- able period of time as evidenced by, among other indicators, a pattern of inadequate per-. formance ar unjustEfied delinquent perform- ance, 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 re- spond to solicitations !n the type of work it Js qualified for and in the geographical areas where it has indicated availability under its approved business plan, The recipient should take such action Sf aver a 2-year period a DBE firm exhlbl[s sorb a pattern, APPENDIX D TD PART 26-1.1ENTpR- PROTEGE PRDGI2AA'I GU1DELiNES (A} The purpose of this program element is to further the development of D13Es, includ- ing but not limited to assisting them to move into non-tradltiona] areas of work and! ar compete in the marketplace outside the DBE program, via the provJsion of training and assistance from other firms. To operate a mentor-protege program, a recipient must obtain the approval of the concerned oper- ating administrazion- 4q CFR Sut~titi~ A (14-1--04 Edition) (B){U Any mentor-protege relationship shall be based on a written development plan, approved by the recipient, which clear- !y sets forth the objectives of the parties and their respective roles. the duration of the ar- rangement and the services and resourtes to be provided by the mentor to the protege. The formal mentor-protege agreement may set a fee schedule to cover the direct and in- direct cost far such services rendered by the mentor far specific training and assistance to the protege through the life oFthe agree- ment. 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 casts must be directly attributable and prop- erly allowable to specific individual con- tracts. The recipient may establish a Iine item for the mentor to quote the portion pF the fee schedule expected to be provided dur- ing the IiFe of the contract. The amount claimed shall 6e verified by the recipient and paid on an incrementak basis representing the time the protege Js working an the cor<- tract, The total individual contract figures atcumulated aver the life of the agreement shall not exceed the amount stipulated in the origins] mentor/protege agreement. {C} DBEs involved in a mentor-protege agreement must be lndependen[ business ern titles which meet the requirements far cer- tification as defined in subpart p of this part. A protege firm must be certified before it begins participation In amentor-protege arrangement. if the recipient chooses to rec- ognize mentor/prateg¢ agreements, it should establish formal general program guidelines. These guidelines must be submitted to the operating administration far approval prior to the recipient executing an lndividua] contractor! subcontractor mentor-protege agreement, APPENDIX E TO PART 26-IND1VIDl1AL D$TERMINATIDNS OF SDCIAL P.ND ECONOMIC DISADVANTAGE The fallowing guidance is adapted, with minor madlflcations, Fram S8A regulations concerning social and economic dlsadvan- cage determinations (see 13 CFR 129.103(c) and 129, [04). - SOCIAL 1~ISADVANTAGE I. Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or culture] bias within American society because of their identities as members of groups and without regard to their individual qualities. 5ocia] disadvan- tage must stem from circumstances bevand their control. Evidence of lndividua] soda] disadvantage must include the fol.iowing ele- menu: 306 Office of fhe Secrefdry of Trarisportatiorl (A) At least one objective distinguishing feature that has cgntributed to social dis- advantage, such as race, ethnic origin, gen- der, disability,. long-tens residence in an en- vironment isolated from the mainstream of Amertcan society, or other similar causes not Gammon to individuals who are not so- cially disadvantaged; (B) Personal experiences of substantial and chronic social disadvantage in Amertcan so- ciety, not in other countries; and {C} Negative impact on entry into or ad- vancement in the business world because of the disadvantage. Recipients will consider any relevant evidence in assessing this ele- ment. In every case, however, recipients will consider education, employment and bus~- ness history, where applicable, to see if the totality of circumstances shows disadvan- tage in entering into ar advancing in the business world, {1) Education Recipients will consider such factors as denial oP equal access to institu- tions of higher education and vncationel training, exclusion from social and praFes- sional association with students ar teachers, denial of educational honors rightfully earned, and sociak patterns or pressures which discouraged the indlvldual from pur- suing a professional or business education. {2} Employment. Recipients will consider such factors as unequal treatment in hiring, promotions and other aspecu of professional advancement, pay and fringe benefits, and other teens and conditions of employment; retaliatory or distriminatory behavior by an employer nr labor union; and social patterns or pressures which have channeled the indl- vldual into non-professional or non-business f le Yds. (3} Business history. The recipient wilt con- sider such factors as unequal access to credit yr capita], acquisition of credit or capital under commercially unfavorable cir- cumstances, unequal treatment 1n opportu- nities far government contracts or other work, unequal treatment by potential cus- tomers and business associates, and exclu- sion from business qr professional organlxa- tlons. II. WS[h respect to paragraph I.(A} of this appendix, [he Department notes Chat people with disabilities have dlspraportionately low Incomes and h[gh rates of unemployment, Many physical and attltudlna3 barriers re- main to their full partidpatlon in education, employment. rind business opportunities available to the genera] public. The Ameri- cans wlth'Qfsabllities Act (ADA] u•as passed in recognition of the discrimination faced by people with dlsahillties. 1[ Is plausible that many individuals with dlsabUities-espe- cially persons with severe disabilities (e.g„ signsficant mobility, vision, or hearing lm- palrrnents}-may be socially and ecanomi- ca111 disadvantaged. Pf. 26,-App. E I[h Under the laws cgncerning social and economic disadvantage, people with disabil- ities are not a group presumed to 6e dis- advantaged. 1Vevertheless, recipients should fools carefully at indlvldual showings of dis- advantage by individuals with disa6111t1es. malcing a case-by-case judgment about whether such an indlvldual meets the cri- teria of this appendix. As public entities sub- ject tq Title II of the AI]]A, recipients must also ensure their D9E programs are acces- sible to individuals with dlsahillties. Fvr ex- ample, physical barriers ar the lack of appli- cation and information materials in acces- sible formats cannot bs permitted to thwart the access of potential appl}cants to the cer- tification process ar other services made available to DBEs and applicants, ECONOMIC DISAAV.4S~ITACE (A) General. Etonomkcally disadvantaged individuals are socially disadvantaged indl- vidua]s 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 qr sEmitar line of business who are not socially dis- advantaged. (B) Submission of narrative and financial in- formatlari. (1} Each indlvldual claiming economic dks- advantage must describe the conditions which are the basis far the claim in a nar- rative statement, and must submit personal financial lnfarmation. {P) [Reserved] {C) Factors to be considered. In considering diminished capital and credit opportunities, recipients will examine Factors relating to the personal financial cohditlgn of any ind~- vidual claiming disadvantaged status, in- cluding personal Income for the past two years {including bonuses and. the value of company stock given Jn lieu of cash), per- sonal net worth, and the fair market value of all assets, whether encumbered or nat. Re- cipients will also consider the financla] con- dition of the applicant compared to the fi- nancial profiles of small businesses !n the same primary kndustry cfasslficatton. or, if not available, in similar lines of business, which are oat owned and controlled by so~ ciaily and economically disadvantaged indi- viduals 1n evalua[!ng the individual's access to credit. and capital. The financle] profiles that recipients will compare include total assets, net sales, pretax profit, salestwgrk- ing capital ratio, and net worth. (D) 7~ransfers within two years, ll} Except as set forth in paragraph (D)12) of this appendix, redpients will attribute [v an individual claiming disadvantaged status any assets which shat individual has trans- ferred to an immediate family member, or to 307 i't. 2b, App. E a trust, a beneficiary of which is an imme- diate family member, For less than fair mar- ket value, within two years prior to a enn- tern's application for participakton in the 1113R program, unless the Individual clalrning disadvantaged status can demonsfrate that the transfer is to or on behalf of an imme- diate Family member for that individual's educafian, medical expenses, or same other form of essential support, (2) Recipients wil3 not attribute to an indi- vidual claiming disadvantaged status any as- sets transferred by Chat Sndividua] to an lm- rnedlate family member Chat are consistent 44 CFR.SubfEtie A (]~-1-04 Edlfion) with the customary recognition of special occasions, such as birthdays, graduations, anniversaries, and rekirements. (3) En determining an individual's access to capital and credit, recipients may consider any assets that the Sndivldual transferred within such two-year period described by paragraph (U)(i) of this append'ex that are not considered in evaluating theindividua]'s assets and net worth (e.g„ transfers to char- ities}, [64 FR 5126, Feb, 2, 1989, as amended at•68 FR 35559. June lfi, 2003[ ~QS Office of the Secretary of Transportation Pt. 26, App, F APPEiVl7I)C F TO PART 2fi--UN3FORls.{ CER77FICAT)RN APPLICATIQN Folu,,! Pr14CR.Ut1 UNIFORM CEATIFiCA'1'iON APPLrCpTIQN N07E: lTYpa regdn addldaW space for my 9•revsa to rhb sgplfnrlee, Please awra atldtgaaal shoo •rroplsa n ended, Seedaa 1: CERTIFICATION INFORAlATiON ~. PHnrlDlhrrCardfiwdso Check the appropriate 6vx iadicating far whitA program yaw fum if eumnr{y ecnifred. if you sm already eerttded u ^ OHE, irtd'ewtr in the appmpriate box the name of the certifying ngeaey that hu prcvio-ualy crnlfied your firm, sod also- iaditate whether your Lrra hu vadprganp as o-naiu vtsiL 1f your firm has almady undergorsa an onaile visiVreview, indtntc the mwt recam date o-! that mvlew and the atut LCP Shat egdduerexl the review. tVATE: tf your item is cumntly ceniGed undo lha SBA's h{a) andlor SOH propams, you may,-gpl love tv evmplela thu applicalio-a Yau should eonlxt your state UCP to find out about ^ rtttnmlined application grvpesa for Lrrn; that are alrasdy tani6ed under [he 8(p) and SD6 pmgnltu. 8. PrlorlOrherpppllurfoda avd PrivNegn Indicate whether your don or any of dtp panpru iisred has curt withdrawn tw application Far a DBE program ar pn 59p 8(al o-r SD8 protpam, or whelAer any lour ever 6esn denied ceniCcatign, drecttified, dshttrmd, suspended, or hod bidding psivllegea denied w restnded by ggy aalc or local agency or PederaS entity. If your answer i. yet, indicate the dale of such sctian, identify the name o-f she Agency, and explain fully the nalurc ofNe amian in the space provided. Secdun 7: CENEStAL INFOR14lAT10N A, Contact Infarmadp0. (l) Sute [he Warne apd title of the person who will acrve v your 6rm'a primary conuct under this appllrollon. (2) Sute the fegd name vCyvm firm, u indicated in your 6sm's Aniciw of incorpgradan or chsner. (3} State thnpritnary phone nurbbarafymv Siren. (d) State ^ secondary phone dumber, if ony. (5) Stara your ISms's fu number, if any. (ti} Ststc your firm's or your canmc[ person's email o-ddnus. (T) ~ State your firm's wshsite addrt:ss, if any. Ig) Sate rho tires[ address of your firm (i.e., the physicd locauan of its officss - (r<y a post aliicc 6nx addrevj, f9) 5uu the mailing eddre» o-f your firm, if it is dtlE~ent teem your Lmsy ravel addnss. B, &uslo-eu Profile (1) In ehe box provided, briefly describe the primary Wsiaess and prvfeasiortal ulivilip in which your firm rngagca (2) Swe the Federal Tax IP nwabcr of your firm u pmvtded an yvsv fan's filed w returns, tf yav have aae. This could also be the Sgnsl Seruriry nusther pf tM ownaaf your Lem. ti3) Sute the date o-n which your firm was officially csublishcd, at ststsd tp your fine's Artclss of ]sycorpanuen or chaser. (4) Sure the date on wAieh you aad7or each other awrcr took ownership oCdtc lion, (S) Cheek the appropriate bps IIMt dett[iher She manner in which you pod each other owner acquired ownership ofyaw firm. ff you checbed "Other,' cxpltin io the coact plavidcd (6) Cdctk dta appropriate hvx War indieatp whether your firm is"for pmfiL" p7~$:,If you chmknd'T'lo," Shen you do NOT gtulify for Iles pSE program and rheteCom do no-l nerd rv camplafa the root of this applieuian. Top OF)6 progrna requhn elk ptptielpaling Lone be fvr•ptoflt entotprisw. ~7} Check Iha appmpdotcbap Shat dsttribea the Sego} farm of vwnefslsip of your firm, sa indicated in yattr Crm'a pnielaa sf lncvrpo-tativn m chance. 1f you thscked "other." hrieFly captain in rhr xpaee provided. (8) Check Iha apprvprlptt boa that indirafa whether your Arm has ever ax(sud under diffrmnl ownership, n different type o-f ownenAip, or a dikTemrn nsma. IC you checked "Yea,' epeeify whith and briefly exploit the eireurmtancvs m the space prvvidsd, (p) Indicate in the rpaccr provided how many emp]vyecs your film hu, spreifyingthe number uF emplo-yRS who work can ¢ full~timc anJ prn- lime basis. (10} Specify the iataf Oro-n metipts of your firm far each of Shc pmt lhrss years, u decl¢Rd in your Lrm'; Clltxl tak filaral Rrladonablpa svllh other Budoeues (I) Cheek She appmpriate box that indicates whether your flan is to-kocated at ony of tLt 6utincsa locations, o-r whcSher your Lem abates p telephone number[;), apost oSLec Eva, ¢ay office space, ^ yud, warehaute, other faei;ttiar, any equipment, or lay office ruff wait pny other busineaa, orgsni¢edon, ar cnhty of any kind. lT you answs[ed "Yes," lhea specify the name vC Ik other firm(g and filially explain the nuso-re of She shvmd fieilitid ar odter (terns u the span pmvidcd. f21 Check the spprvpdHe hv: deal iddicala wheiher at prxsent, or a any lime in dte prs+; Ip) Your funs has beep s subsidiary o-f wy other fuah (bl Yaur firm rgpsiarcd of a pannership m which one or mare o-f Shc panaen are other firma; (e) Yaur firm Aar owned ony prreentage of any other LAW: pod Id) Your firm hu lad any subsidiann of its o-w-ra (3) Cheek the apprvpnau 6ax the[ indicates whethsr any wither Lrra has over had an vwnc:shtp :o-urpt an your Siren 309 Pt. 2b, App, F (i) if you answered "Yn" b any of the qucstiorss N [2)(a)-(d) or (3l, idmdfy she name, address and type of business for nth. D. Immr:dlnte Famlty hlrmhtr Butloe>ig Check the appmpnate haz that indicates whcdser any a! your immediate family taemben own at manage another company. M "immediate faemly raerteber" ie at;y prnon who is your Tither, mother, husrirnd wife, son, dsyphter. 6ro[her, starer, gnndmothvr, gmndfadtsr, gwndaon, granddaughter, malher•in-law, ar Pother-ln-law, ff you amwrred '7u;' provide the name oL eech reluivc, your reWiomhip to them, the mane of the company tiraY owo armatugc, Ilse type aF 4usineu, and whether they owo pr manage the company. secryod 3: OWNERSHIP Edentify alt {ndivlduala or holdkng eempanlea wlth spy owaerapip Interest {a your firm, pravkding for laformatlon requusad hataw (If your Arm ltas more Ihpa oae oxoer, provide completed cop]u of Ih6 seeded for each add{clonal ownaryt a Baekgtound Saformapoo (t) pivethaoomepflhcowner. (2) State hisAter tldc err pasillonwithin your Gem. (3) Give hiarhor home phdae ntwbcr. I4) Stetr hiUhtt home: (street) addrea. [5) Check the apptopriafe box thvt indicates this ownar'a 8rnda. Ib) Check [hs appropriate box ihn[ indiceles Ihis owner's ethnicity (check all that apply). 1f you checked "Other," rpeeily this owner's ethnic group/idcnGty trot othmvisc listed, (7) Check Pot appmpnate box td indicate whether this owntt la a U.S. citizen. (g) if this owner is not s U,S. citizen, chock the opproprioie box that iruiisater wherhtt Ihia owntt is ^ lawfully admitted paroeanent rosidrnl. 1f this owner is neither a V.S. citizen nor a lawfully vdretilted perutanmt midenf pf tkr 11,5., then this uwnar is NOT digibir Car ceRiCeativn m a pBE owner. This, howcvar, does Hat oeeaanrily dlaquaiily your firm a[logrlher from the DBE program if mother owner is ^ Us. citixen or IowTully rdroi¢ed permanent evident and meets the progeam'r ether qualifying tcquinmrnsa, B. Ownenbip Interdl (1} stnte the number of ycan dwing which this owner her btam an owtur of yom Ilan (2) Indicate the dollar value of rhea owner's initial invvstmrnt m acquire en ownership intsrcai in your firm, 6rpken down by cash, real estate, equipmeass arsdlpr other Invrs~rnt. (3) Slate the pcnznmge of ideal awttenhip control of your firm that this owntt ptraessq, (4) Start lhs Familip] solariapship pf this owner to eseh other ownvofyour firm ;5) Indicate the number, perceouge pF the tolaf, e}ass, date acquired, and method by which rhea owner acquiral hislhw rhares of street in your fnm. 49 CFR Subtitl®A (1x1-04 Fdflior3} lb) Check dte appropriate box clue iadieNrs wherhtt ' thin owner performs s aianvgemem ar suprnisary function !hr any other bsuiarss. If you checkr:d "Yea;' state the trams a[ the other 6udnds amt Wis owner's fimmian or rifle held in that Guinea. (7) Chet:k the appropriara box t{ut irtdir;tw wherhtt Chia Droner owns or warts Far any other fermis) Char by gmt mlarionahip with your ftiliL If you cheated "Ya," idemfify fbt Warns of the other 6vaineu aq6 Chit owaer-a Tatneuon or title hold in that buiinw. Btiefty deacribo the nelurc pf the bwinar eeWiosuWp in the space proridvd. c. nlaaavwugadst:n,a IroTir: You volt' coed to complatt ikR ssrdae for each owaer thafla apply{erg for U8$ quallflcatlon (I.e., for rack owaer wbe is efalming to M "aaelally sad ecoapmleakty dludvanfaged" ^ad whore vwnerablp lntereat U ra 6e canattd toward rht control and SIY. ownenklp regalramenu of tea QBE program) (I) Ind'emte in the apace pmvlded f}ee mu[ PersomS Nat Worth (PNW) of oath awmcr who is applying for DB8 qualifleatfon. Use the pNW aalculntor form n the and of ihH application to rompute each awntr'a PNW. (2) Check the appropriate hox Iltat indicates whether any Wet ins cvtt been created tar the IxnrTit of this disvdvamaged owner. If you answered "Ym," 6dsM1y oaplnin the ntluro, hiuory, purpose, and current value of the puags). sretlan A: CONTROL A. Idvnt{fy your Ilrm'a piflcert and Hoard cf Direcran: (1) [n the spars provided, smle the Home, tllle, drk of appointment, ethnicity, and fender pF each afilcerofydtu Tura. (Z) In the apace provided, scat the name, title, date pf appointment. ethnicity, and gender pf each individual serving on your Eiror's 9pard of pircttvn. (3) Chock We ppproprlate box drat lodicatea whether any o[yput Item's ofieeti andfordirceews listed above perform ^ managameat or superv'ssary Tuncddn for any other bwiness. IFyou anrwcrcd "Ya," idrmdfy each perwn 6t' rums, Idslher title, the name of tht other htuinsar in which sRtc is inroived, and his/hm fveectipn performed in Thal other hnsity-•• (-0) Check der; appropriate box that indintw wherhtt nay of yore tam's oReam medlar directoa tiered above own or work ter any other f1rmG1 that hu a mluionrhip with your firm. If You uuwered "Yes; Idcndly ate name of the term, the officer pr director, and tht nature of his:hcr heainey relatinrahip vnlh that ether firm. 8, Identify your Rrm'a maaagamegt penanvsi {by Dame, tint, etbnkity, sad gender{ wka watrel your lino in ehr Tollrwing areas; 310 Office of the Secretary of Transportation 111 Making Cnancial decisiaas on yom firm's behalf, mcludiag the uequuitirn of bare of ertdt4 surety bonds. supplies, da; I'-) Esntnating anJ hidditrg, incivding calcssfalsva of vast atirtuta:, bid psepantien attd n6missian; I1) Nagatiatiag and caalract ezccWivn, ipcluding parueipalipn in~ my aT your firma acgoliations and samuling evtrtmcrs on yala film's be4alf: (e) Hiriag andlar firing of irw,nagnmmt perwnnel, including latarviewing and cendvating pesfwarance evaluadoro; (S) FieidlPradumipn opersriani supetviaivn, including siu supervision, lthrdvlivg, project mwgemeat servlew, air; lb) Office Imuyeaenh (?) Markatiry acrd ula; (g) Purelusiag ofmajtu cquipmmt;. (9) Sigsdn6 company chinks Clbr my purpwe); end (]0) Canduccing say other finaoclal lnnssnticns on year Firm's 6ciulf eat elherwine listed. l]I) Check die apptopriata box flat indi«Ip whcthm aaY of the paeans ]fisted in (I) dwugk (1D) above perform a manigemenl ar supervisory funcllan {or any pthcrbuaitrea. 1f you aaswtred "Yaa," idmdfy each person by name, blather si11e, She carne of the other husinen in which sfie rs involved, and hfsrher Rrntlion performed In that vthar hwiness. ; ]2) L'lseck the npprvpriate 6oz That Indicald whether arty of nc~ persosu flared in (q Through (1117 a4ove own or work for any other Grin(s) that hen o minliomhip with your ram. ]Cyan answered "Yes," identify the Imme of the lion, the Hume of ¢he person, untl the nofure of blather business mlaapnshlp with Iha1 other firm. [ndicnte your firm's Inventory In the Fallvwing eakgorfw: (17 6qulpmtat State she sypc, mxkc and model, and current dollar value of ~raelt pilxe of equipmrnl odd anNor used 6y your term. Indiaam whcdtsr «ch piece is eilherownsd or leased by ypw fimv [}) Ytitlclu Sutc the type. make and medd, wd eurrem de]lar odor of eneh motor vehicle held mdlor aced 4y your Crro. 1iShcealC WherheT pch Y¢hiCle it citlur owned pr I^••.n Ay your taco [S) 0lfiea Space Sate the street addrtas of each vf[itt space held andlor uaad by ypvr fstra. [ndicau whtdser your Fern owm ar lease the offsc spate an6 the tvtxnt dolor value of that pnspepy or iu llsae. (~) Storage Spats Sate the sre'eet additys of each mange space held andlor used 6y your film. Indlutr whether your Ilrra owm or leases the ster.ge come and she current dailar valve vT that propeRy ox ds Itaue. Da« your flan rely on say ether peen for tpavagemao! fupesbu ar employee payrng? Check dtc appmptmte boa That iadicafw whttha your Rem eefies on any other been for mmagemem Funet>ons yr for employee payroll. If you answered int. 2~, App. F "Yw," 6ne6y eapl-tn the ulnro of Ihal rehantc and the eximt m which Iht other 6rm comes out rech lunctiptu & Flpaoclallaformatloa (I) Brtnldeginforraativn (a) Slsle dle lt:me ofyvur Crm's4mk, (h). Sine We main phone number alynur firsn's bank htaasit. (c) Suu dIe addraa of yattr fem'a 6aak blanch. (Z} Bvtdity InfatffLli6a (a) $am you fum'a 13iada Hum4er. (h) 54te for acme of year firm's bond agrnr mdloe looker. (c7 Sale your agt:ns'rl6rekrr's p4oae aum4tr, (d} Saa your gleat'albreker's adtlreas. le) Sam your tam's [cording limiu (ia dvllan), spccifyhtg both the Aggregate and Projttt Lirails. F, Ideadfy off aoaresa, .mouna, and puspaan of money foanad eo your Rem. ineludlug the acmes of penom or (fans seturhrg the loan, if other 16an toe IUtM ewom: Sutn the namc cad address of calls source, the none p( the ocean secltring lht loan, the origiui dollar omounl cad the: current ba3artce of each loan, and the pfupose for which each loan was made tp your firm. G, Llsr ail eanMhutfaaa ar tranafen of oaten Idfrdm yaor tune and blfram troy of Hs owaen over the p«ttwoyawn: Indicate in nc~ spaeta provided, the rype of conlrihufien ur enact slur was rrpnsferted, ITS cunml dallm value, the pennon or Perm from whom it wu fransferted, the pence Ire firm fo whom it was tremferred, the relatipmhip between the Iwo persons undlvr Firms, and the dak afthe transfer, il, i.lst comet llnasralperroiu held by eny owner or amplayae of your Ilan. List II>t name pTea~h pewaa in your firm who holds a pmfwsional Iiclmse ar permit, rho type of Ilcense or pertnis, the expitattan date of thc.permil or liernse, and the Iltxrudperadt num4ar and issuing 5uu of the licrnsc orprnnit I. Lht she Ihru isrgeaf coatraea completed by ypvr firm Iv the put t4rax ,yeas; If coy. L'ut the none at each owner ar eonuaclpe for each ernlrut, Ne name and Ipeallan df the pmjettt undo each eaalneL the type pf work performed en e.eh cvnaacr, and the dolly wiur of each contncL J. List the Three larg«t active jobs an wklch your fleet n currently wtrrida=. Far each attive jo6lAltsl, style the name of the pnmc cmtrac[er .red the pm7eos number, the lonuon, the type of work perfomfed, Ihn project start dare, the mticipaud campleopa dale, and the dollar vnkus of Uu aorrtatt aFFI>1wVIT & SIG[VATVRE Carafulty rend the attulud affidavit m to entuery. Fill in the required iafomsuivn for wsh 41ank spot, and sign and date 11x affidavit in the presetse aT ^ IQotaty Public, who must then notanze the fartR ~~1 Ri. 25, App. F 49 CFR Subtitle A (la'1-04 Edition) )~1SADVA.~rACED $U5[7V'E55 E~1'i'ERPRI5E PROGRAM 44 C.F.R. PA3er 26 UNIFORM CERTIFI'CATIOIV'APPI,ICATION .f3~D~}YCA:P :F~:53 .h1:P;P'.L7•CA~Hr~ O ShoWd % apply? o is your firm atleast SlX-owned 6y a socially and ecnaansimlly disadvanmged individual(s) who also coavaSs the tur»7 - o ]s the disadvanmged owner a U.S. citrcea or iawlhliy odauRed pertn¢nent resident oitbe u.s o Is your fits a small business that meals the Small Eusinsss Adaainislradon's (39A's) sizc stru[derd ~d does not exceed 517A2 million is grvas annual receipu? o Is your fttm organized as a far-profit butineu? ~ If you answered "Yes" to all of the qucsliona about, you mnv Lq eligible tp panieipnta in the U.S. D6T DBE program. is tht:re an casicr way to opply? (f you are currently certiCed by the SBA as an 8(n) ondlar SDH fitrn, you maybe eligible for ¢ streamlined certificslion applic¢ti¢n pracps. lJndar Ibis process, the ceR(fying agency to which you are applying will accept your cuaent S$A appliealion package is lino of requiting you to filk out nod submit [hu farm. NOTE: You must still mcei the requirements !ar thu DBE pragrata, includtng undergoing ¢n on-site review. t9 De sate tp attach sit ni the required dacumettts listed in the pacuments Chec~t, list at the end of this form with your completed application. O Where can 1 [kad more information? a U.S. D6r- (y~tp~llggdbuweL.dot.uavr6usinessldbelin~e~,hlml (Ibis site provider uaCful IinYs tp the rules and ragulntianr governing the DHE program, questiaar and answers, and other pemnent information) n SSA-h,fg~wwnv.mis.gpvingj~ (provides a fisting pfNAICS codex) and .. hn¢:1lwwwusba.sovlsvrlindeet~b(Fy •~~.>,~.,.[ {pmvidn a listing aftvAlCS codes} Under 5cc. 2G.k07 of 49 CFA Part 28, dated February 2, 1999, If m any nme, the Departmrnt or a rocipienl hss reason to believe that any pcnon or frtn has willfully And knowingly provided Weorrect lnfattnation or made false statements, the Pepartmeat may initine suspension or debarment praceedingt ageinst the parson ar firm under 44 CFR Pan 29, Govemmenewide Debamteat and Suspension (nanprcewement} Arid Governmentwide Requirctttents for Dng-fine Workplace (grunts), take enf¢rcemsnl sedan under 99 CFR Port 31, Program Fraud and Civil Rerncdiea, and/or refer the mnRer to the Departmcat of Justice Far criminal proseoutian under l8 U.S.C. Pugc 1 of B 3l2 , ~f}IC9 p} }he $t?CitB~Of~ Of ~fCf15~701tGfiOC1 ~. Zb, i4~P. ~ Sectiap I; CERTIFICATION INFORAIt.T1QN is your Cum currently cenified Cpr any aCthc Fallowing pmgtams7 4 OBE Name pf ¢cnifying agency: tTj Yrs. rhrck apprcprime 6nr(eeJJ }Ins yppr ~~ s state LFCP Candueled an on-site vi5lt? D Ya pn I I Stnte; O Na © 5(a) ®BTOPi lfyou checked either the g(a} or 5D$ hex, you mnv nor O SDH have w complete this applitatipn, Ask your state UCl? about the streamlined a licatiap rxess under the SHA•DOT MOU. Han your firm (under any nsate) ar any of its owntus, Spard of Directors, officers or mmagemrnt personnel, ever withdrawn an application fp[ nay of the programs listed above, ar ever Bcen denied cenificatian, dtxcrtified, or dabaned ar stupended ar otherwise had bidding privileges dcaied or reetrieted by any slate pr local agency, pt Federal cnliry7 ©Yes,pp ! 1 ONo [f Yes, identity Stole and name pC state, Seen{, pr Federal agency and expinirt the nattue nfthe action: ~ e~-.......... r.. n.~....,....., Section 2: GENERAL INIFOI;.SVIATION { I) Coa[acr parson and Ti1ie: {2) Lr3ga1 name of ftrm: })Phone #: 4 Other Phone #; 5 gpx #; 6)E-[nnil: 7 Website; hnv.~ns: ($) Srtcct oddress pffuta lNo P, t7, BarF: City: CauntylFuish sum: Zip: (ii) ivtailing address pf firm ll+rillRSnr): cny: caanryrPari[k slams Zip: a a...r..a.. o...me (I}Describe the primary activities pf yotu Ctrnt: (2) Federal Tax iD (~an~y: } This Corn was cstabiished on ! ! q) UWe have awned this ftrm since: ! 1 {S} kiethod of aequisidon (check a71 [bar apply): C7 Started nnw business O Bought existing business ^Itilterited business ^ Secured enncessipp p Mc er ar cpnsptidation ©Other r 1giaJ {6) [s your firm "for profit'? Q Yea Q Np ~ STOPI ]f your Cirm is NOT for-profit, then ypu da NOT qualify for [his rp am 5nd do NOT peed tp Ctl1 out this p lication. Psga Z aF g 313 ,, , P1. 26, App. f ~9 CFR Subtitle A (1Q-1-d14 EdiPloe() i7} Type of firm trh +art +hurcaNYl. o Sore Propsiatorship ^ Partnership o Corporation 4 Limited Liahiiiry Partnership o Limited Llabiiiry Corporation a Joiac venture 0 Ocher.peserihe: (g) Ras your firm ever existed under different awaetship, a diffcent typo of awnetahip, ora DYn ^No if Yaa, explain: [ I O) Specify the grass receipts a! the first For the last 7 yens; Year Fatal raccipts S Year To+et receipts S Year TatelreaiptsS ~.. nerrpaaspc ~ w1tG Other Baslnrasea (1)15 your firm ca:locdtad at any of its 6usiacss Itacatiaos, or don it share a telephone number. P.t]. 8ox, offs apnee, yactl, warchatue, fscifilin, cquipmsnt, ar olfree staff, with any arbor humans, organimtioo, or eatlry7 ^Yes GNo , If Yes, idandfy:. Qcher Firm's name: L•splain aetma ofshnred fneiliGca: (2} At prasent, qr at any time in chc (a) keen a suhsidi afan other firm? ^ yay past, has your firm: (b) consisted of a ptutnership in which one or more of the partners rare tit tr you nnswcrad "Yes" to gray of the quesNoas in (2)(a}•(d} andlor (3}, identify the folinwiag for wch (attach uruv,rhtets, ljn~eded/: I y "~ d~dCSi~ T e si z. 3. ~. Immedtxte FamLL Member Bua[ansp Do say of your immediate Lvntly members own dr manage ann[htr company? Q Yes Q No ~•~ ~.... [f Yas, than f isc (attach urn sh.etr, rf needed): ~~ gChh41L55jp Cam~anv .Tae ofRnsin..~ t. Y .., Oyy~grMe_•_•,en,~~nn.~ Page 3 ofg 3i4 ! , ' : ~ r Office of the Secretary of Transportation pt, 2br qpp, ~ Section 3: OW:YERSliIP Identify n]l Indlvldualt nr holding compan(ta with aay awpenhip knterest in your firm, proridinS the iaformal3no tcgnRated below {Ifmorerhyn one owner, auach reparatrshretrfor rack oddlrlar+efawnrrJ; il) Name: (Z) Title: (3} Homc Phone p: {4} Home Addrr§s (+trerl and numbed' Qty: 8uu: Zrp: (S) Gender: D Male ^ Ferrm[e (b] Ethnic group memherahip lChcrkolr rhur eppyl: (T} U.S. Citi~rn: ^ Yes D No O Sleek C1 Hispnnie D Native Americm (g) Lawfully Admitted Permaarnt Resident: d Yoe ^ No R Asian Pueifie ^ Subcontinrnt Asian Q Other (specify) 7 Perceaw a owned: to uquhr ownership C,ssh S {4) Familial mlationahip to othu owners: interest in from: Rea! Estate S Equipment S (Aumher Pcrcenuee Cls+s {(,) poea this owner perform n mapsgcmeat at supervisory fwtctiaa fat any other busu IC Yes, identify: Nome of Btusnns: FLacuoM'iue~ {T} Doos this owner own or work For nny other Ctrm(s) thot has a relationship with rhis shared alTer apucr,/Inunoutrmmraienu, rymymntl. 7rtuu. persvnnef +Fanny, mr.}7 ^Yea C1 No 1f YES, idrntifj': IV+mc urHu+inex+: FuncuoMide: Ns:arn urBunnen Rehuoruhip~. C. pisudvantaYedSiatas-tVpTE:Compteteth4teedoaonlyforeachowncrnpplyloefar-BEqun11[lrotloo sl.eyer cock owner do[minl! to d: sxlalty and ecoepmlrMlly dlndvmlaeed) (I) What is the petsottci Net W ooh (PNW) of the awpet(s} applying Cor 1J6>_ qualiSenlion7 ruu onJ onerh the Penunel Her Wer+h eelafetorfur+n ar Me end gflhir applirnrivn; errorA odrlnond+heel: if more then vas awceru uppllrn~ (2) Has any tnsst been created far the benefit lCYes, wtplam [arled eddlrionul rhnu if neadrdl: F~gc a of B (nr,. ewnershrp mlrrul. 315 Pt. 2b, App. F 49 CFR 5ubtitl~ A (10-]-~4 Fdition) Section 4: CQNTROL Il) Offlcen orter . ......-_.~.-------_. Name la) _~•••••...~,. rw u, Tkle wrwu„o,a csu u Date A oiated rrea, Pr7ar11 uar rarr Ethoicl skerr: Cender Cempaay e (2) Board at Direetan (.} c e {3) I3o any of the persons listed in (t} end/or (2} above pttfatm a managemrnt or supervisgry Fuaetioq Far any other business? ^ Ycc CI No ifYes, identify fpr eaoh: Person: Titls: Busioeut Fuaenoa: (4) DD eqy of tht: persons listed (1) andlor (2) shove awn or work Forany alher term{s} that has a relationship with this Gtta qr.g., oxmenhp mre,err. aAorcd r$er aparr,Jlnancmr inverrmenrc, ryarpmrm.! ru, prrrannrt aaarsng, err.}? Q Yes O No Ef Yes, identify for cash: Firm Nome: Prnao; NaNrr of Husinesf Relationship: n. fdegtlly your Drm's msnaEemegl personnel who control your itrm In the fallowing Drew (lfni~ur rhmr _. _.--- --r----- {1) Financial Decisions [resppnri6fliry faracgaUfdon ortinu of -~-- Nams a. Tllle ~thnlrity Cendrr , .•rrdli. sure hrndin , rv lia, nr, h {2} ~pimoting and 6ldding a. b. {3)TlegotiatingandConeact a, Ef:ECLLgan h {4) Hiring7Firing of management a. perSaMrl b (S) Flaid~l'r>]dnCUan dperatlOn6 R. Supervisor b. (6) Ofl-ice management a h. (?) MarkcNgglSalrs a. - h. (g} Purchasing ofmajor i a. rqu mrnt b. (9} Authorized to Sign Company a. Checlcs(fortmyptttposa) y, (1O} AtidtariZed t0lItakr Fi a. nancial Transactions b. Page S of 9 31fi _, (3ftice of fhe 56cretpry of Trpns~oriafion Pt. 2b, APR ~ (I I } L>a any of the persons listed m (1) through (] 0) above perfums a managetaral ar superv(spry ivtsrnon other business? O Yes 4 No EfYcs, identify for each: Pman: Tit[e: 9tuwus: FuncGpa: {13} Aa any pf the persons listed in (I) through (I O) above awn ar work far any otbQ f rrn(s) that has a rcl: With Ibis fum le.C. ow~errrh P e>rmn..G ahead oQrer Via. financial ert+ru~rrnu, ~grip~urf. lrmu, pe-+wu! lhunng rte)? a Yw ^ No Lf Yes, idan[ify for each: Film Name: Peron: 3Vatute of Swiaess RalazioasYtip: G Indicate your Iirm's Inventory Ia the tpllawiog categarEes (attach additfona! shoats ffneaded}: I ui mart Tvn nr T. m.t.. - - I-^. (a} - - - -- n~ Ts~ne V Wnl6 6r Leaned? (b) (~7 a, „e~.~..,.. T e p(Vahlrle htakelModcl Curren! Vatue Owocd arLcused? {a) (b} [C} il) [ Ia) :vame pf bank_ (b) Ahone dip: { ) _ __ Page 6 of g any ' 317 D. Dow ypar firm rlty an any arbor firm tar rnAnagemeat (anillaaa pr empl0yle payrOlla a Yes Q Np Pt. 26, App. F 49 CFR Subtitle A (1~1-04 Edition) {2} Hondlne lnfvrmativn: !f you hove bonding capacity, identify: (a} BinderNv: {h}Name Of agcnt/hL61Ct7 (o)Phane No:( } {d} Afidtesa of ageRtlhmlur: City: Sla:c: ~ Zip: e 8vndka limit: A to limit S Pta'ect limit S Ideatify all sources, am¢unu, and purpmb of money IvaRed tv your firm, lucludtnli the nnmes a! any errans ar Mme ¢lSavrce t7rmt sxnrin the loa Ad6rapvf5aurce n if other than the lEst idemeofPenvp Srcvrlp the Lvp¢ ed owner: Oripnal pmvu¢t Currrat Bplpoec Pv~po~e¢fLesa 1. 2. 3. G. List all cantributtans or transfer of aue4 lelh¢m your Ilan avd Ivlfram any alhi owner over the Canrrlhutivvlpuei Dollar Value' - From Wham Transferred To Whom Transferred Relail¢mhkp Us[e v! Transfer 1. 2. 3. ~ l1. Lis[ current lleenseslpermitt held by any owner audlvr empivyee of your fltm le.g., cnnrrvrmr, eagirteer, _ -.. _. Namc o! LicraseJPermit Flolder .--- ... TYp ,. a of LicenselPermit ~ Esplration Llcettse Number 1. Dote and State 2. 3, r „~........._.y.___~. _ ...- - hameaf dlYaerlCantrpetar -- ---~------ ---.. ._..... .. .. MmeJLacati¢n of Pro !Ci ..~ ..~... .~. .~~ u+r .sre pore a ¢n Type of Work Performed 6allar Value at CORtraet i. Z. 3. Psge 7 of 8 31$ Office of the Secretary of Transporidtion Pt. 26, App. ~ List the Three lareeat artive inh^ en whlr6 rm~r ~r Natne of Prime Contratror and ProJrct NumEer Loeatlon of proJrtt Type of Work Protect Start Arie Aa[3clAated Completlra parr pollnr Value of Coctraet 1. 2. 3. Page 8 of 8 319 F'1. 2b, ApFa. F ~b9 CFR Subtili~ A (111-04 Edition) D8E ?JNFFORIN C£RT1FiCAT1ON pPPLiCATION S1IPPORTINC Dl]CU1<1El\'T5 CHECif,L15T In order ro epmptele your appLLutlap {or DBE mrtfdepttoq you map anarh eaptq of all ar the fogorrtag doramepq w Iht a I to ou apd nor lltm Iir ^ Wark axperieacc trauma [include places of ownesshiplcmplayment with comspending darts), far all owncra and atficera of your fum O Personal Financial Stmemeat (form available with this rtpplicatipn) ^ PersotwltttxrottttasfprlhrpasttYvaeyar5,etapplieahle,fareachownereiaimingdisgttvaptaged status ^ Your tam's tort Tetaraa {gross rece'spts) and ntl related schadula far the past dtrteyeere ^ Daettmeated proof of tantribu6oru tattd to acquire owgerahip for each owner [e.g., both sides aj CdnCeiled CAeCAT} ^ Your 5rm's signed Eapn egraements, security agreeatenu, sad bonding forma ^ ISescriptioty of all real estate (iaclading atlirelstprage sport, elc.)owars3lleased by your lint and doewaeamd proof of owacrshipJSigned ]eases ^ List of equipment Jenard pnd signed icsse ogreemrnta ^ Listpicpnahuctioncquipmeatsnd~orvehielepowaedaadtideslproofofpwnership ^ Dxumcatad proof of any treasfars of assets tWfrotn your ifrrn sntllat tdfrom any of its owncra purr dtc past twa years ^ Yeas-end balance shceu and income statements for the past thtec yeah (ar Jrfe oj~rm, iJlerz than three yenrr), a now business must provide s current 6alaace sheaf ^ All rClCrna[ llCaaata, llCapaC taaawpl farntri, permits, and ltavl anlhOria farms ^ D13H and SBA e(a) or SDB ccrtificatipna, dapials, andlar dacertillcgtians, if appiicpblr ^ Bank authorization and signatory cards ^ Sehcdule ofsalarias [or otheraampcnsatioa ar remuneration) paid co all offiecrs, managers, owncra, aadlor dirocmrs of the firm ^ Trust agsaemeats hdd by any owner claiming disadvantaged scams, if any Pnrrnrrr f ar Jofn! Venture ^ Orig'snnt and otty amtndcd Pert¢ersh'sp or Joint Vanrurt Agrecmehts Comer prarlon pl LLC ^ OfEclnl Attialas of lacgrpomtian (slgatd by the stare a~cia!} ^ 'Both sides of alE eerporate stack certifieatea pnd your firm's stock tmrtstar Icdger ^ Shareholders' Agreement ^ Minutes of all sspckhpldeta and board of directors meetings ^ Cptpamsc 6y-laws and any amendments ^ Corporate bank raoluGan and bank signnmrc cards ^ O[lieial Certificate of Pormatiaa pnd operating Agreement with say amcndmcnts (E'er LLCs} xY~srkrne („pmaanv - ^ Pactcrrtrntcd proof of ownctship of the company O insurance agreements fur each [tuck owned ar opernsad by your firm ^ Titta(a) and rcgisuntipa certificple(s) for aoch truck awned or apcmted by ynar iirrn 4 List of U.S. DOT numbers for tech nvtk owned o[ operated 6y your firm Re rcf a ^ PmofafwaRhause gwgtrahip pr Icasc ^ List of produce liars carried ^ Lrs[ of distribution equipment owned agNor Ieascd '\OTE: The specific state UCl'to which you are applying may have additional required doeumeaq thot you must also supply with yoar applicntian. Contact the appropriate cartifyiag agency to trbich you err applying to find nut if more i9 regafred. 32a Offic® of the Secretary of Tfanspor}ation Pt. 2b, App. F .#FFIDAVIT OF CERTIFICATION ThisJnrm must be sfgrred and notaried for ac owner upon whith dfsadvontagedfratat krelied. A i1tATERIAL OR FALSE STATEMENT OR Dhtl55ION MADE IN CONNECTION WITH THtS APPLICATION IS SIIFFTC~NT CAUSE FOR DENTAL OF CERTIFICATION, REYOCAT]ON OF A PRIOR APPRpVAL, ]NITlATION QF SUSPENSION OR DEBAILti~NT FROCEEDINGS, AND iVIAY SUSJECI' THE PERSON ANDrOR ENTITY 1MKWG THE FALSE STATEMENT TO ANY AND AI»L CIVIL A:W CRIhII]tiAL PENALTIES AVAILA$LE PURSOANTTO APPLIGASLE FEDIERAL ANT! STATE LAW. I (foil anme printed}, swear or aKirm tmderprnttlty of law [hat I am (tstle) of appliean[ firm {Rtm name} and that !have recd and understood all of the quaseions in this appliaAGoa and that ell of the foregoing information sad suttamenq submincd in this application and its attachmeaer and sr[pparting docwneAts are tms end correct to rho bas[ of my lotowkdge, and that till ieaponsea [o the gtrestioas arc full and complete, omitting no material infarmatlva Tile responses include all mareritil iafarmation necessary to fully and eeettrateiy identify end explain [he operations, capelrili6es and pertinent history of the named firm as wail ea the ownetahip, cantml, and ali6liatians thmeof. 1 recognize that the infartnadan submitted is this applicadon is far thrputpoae of inducing certification appmval by a gavet7tmaot agency. 1 underatnnd that a goverrtmrnt agency may, by means it dorms appropriate, derertrrinA the acetuaey end truth of dta smtemcnts in the application, and I authorize such agency to contact any en4ly t[nmed in the application, and dte named firm's bonding eompatties, banking institutions, credit agencies, eontraelors, clients, and other caRify@rg agrn6ies far the purpose of verifying the infotrnatlon supplied and determining the named firm's eligibility. t agree ro submit to government audit, examinndoa and review of books, records, documantt and Estes, in whatever Corm they exist, of the named firm and its ntTilietas, inspection of ice planets} of business and equipment' and m permit imerviews of its principals, ngesrts, and employees. [understand tlrst refusal to pcrrnit such inquiries shall . 6e grounds far denial of ecnificauan. If owarded A contract ar suhcantraat, l agree to pmmpdy and directly provide the prime conhactor, if any, and the baparrrntnt' recipient agency, or federal funding Agency an An ongoing basis, current, complete and accurate infarmntian regarding (1) work performed an the pteject; (2) pnymeals; And {3}proposed changes, if any, to the foregoing nrrnngemenes. 1 agree to provide written notice to rho recipient agency yr Unifred Certification program (UCP} of Any material change in the infarmatian contained in the arigingl applicaton within 34 calendar days of such chAnge (c,g„ ownership, address, telephone number, etc,). I acknowlcdga and agree that any misrepresentations in this applicator or in records pertaining [a s contract ar subcanrrrct will he grounds far terminating any contract ar subcanrrnct which may he awarded; denial ar rcvocatioa of ceriificalion; srtapcttsion and debarment; and for iniuming action under fademl andlorstatc law caaceming False statement, Crazed or other agplicahlc offenses. 3 certify that 1 am a socially and econamicnhy disadvantaged individual who is an owner of the above-referenced firm socking eenifecadaa xss a biaadvsntaged Business Emerpnsc (I)HE}, fn support of my application. I certify that ] am a membrr of one ur mart of the fallowing groups, and tiro I have held myself out as a memlxr of the graupisl (circle ail that apply): Fcmaie Black American Hispania American l4auve American Asian- Pacific American Sul7[onlineni Asian Amercan gther tspectfyl 321 Pt. 26, App. F d9 CFR 5ublitle A {1E3-1-04 Edifiiony I ¢erttfy that E ¢tn socially disadvanaged bemuse [have bcen subjected to racial pr ethnic prejudice ¢r culmrel bias, ¢r have suffered the cffects of discriminatioa, because of my identity as a memher of ant or mart of the groups tderttafied abitve, without tcgard to my individual qualities. 1 fierther certify that my persona! net worth dnes not exceed 5750,1N16, and lha[ 1 am cconottisenSly disadvantaged hrwtlse my aEility to compete in rho fret cntetprise system has bee¢ impaired due w diminished capital and cttdit oppgrturtities as ¢gmpared !o othea in the suns or simil¢r line of busi¢css who att n¢t socially and economically disadvanaged. E declare under penalty of perjury that the intonnatign provided in this application and supporting dacumenu is 4ttc aad correct. Fatecuted on (Dote) Signature f t7BE Applicant) .~'OTAItX CERTIFICATE l68 FR 35559..lune 16. 1003) 322 ATTACHMENT 2 2DEa4 Specifications SPECIAL PROVISION 000-461 Disadvantaged Eusim~ss En~en-prise i~a Feslea~si~-Aad Const~-ucteaan 1. Description. The purpose of this Special Provision is to carry out the U. S. Department of Transportation's (DOT) policy of ensuring nondiscrimination in the award and administration of DOT assisted contracts and creating a level playing field on which firms owned and controlled by individuals who are deter;r-ined to be socially and eaonarnically disadvantaged can compete fairly far DOT assisted contracts. If the Disadvantaged Business Enterprise (DBE) goal is greater than zero, Article A, "Disadvantaged Business Enterprise in Federal-Aid Construction", of this Special Provision shall apply to this contract. If there is no DBE goal, Article B, "Rape-Neutral DBE Participation", of this Special Provision shall apply to this contract. The percentage goal for DBE participation in the work to be performed under this contract will be shown on the proposal. A. Article A. Disadvan#aged Burliness Etnterprtse In Faders!-Aid Cans#ructian. 1. Policy, It is the policy of the DOT and the Texas Department of Transportation (henceforth the °`Department"} that DBEs, as defined in 49 CFR Part 26, Subpart A and the Department's DBE Program, shall have the opportunity to participate in the performance of contracts financed in whole ar in part with Federal funds. The DBE requirements of 49 CFR Part 26, and the Department's DBE Program, apply to this contract as follows: >i. The Contractor will solicit DBEs through reasonable and available means; as defined in 49 CFR Part 26, Appendix A and the Department's DBE Program, or show a goad faith effort to meat the DBE goal far this contract. b. The Contractor, subrecipient or subcontractor shall not discriminate on the basis afrace, 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. c. The requirements of this Special Provision shall be physically included in any subcontract. d. By signing the contract proposal, the Bidder is certifying that the DBE goal as stated in the proposal will be met by obtaining commitments from eligible DBEs or that the Bidder will provide acceptable evidence of good faith effort to meet the commitment. 'The Department will determine the adequacy of a Contractor's efforts to meet the contract goal, within 10 business days, 1-11 X00---461 {32-46 excluding national holidays, from receipt of the information outlined in this Special Provision under Section 1.A.3, "Contractor's Responsibilities." if the requirements of Section 1.A.3 are met, the conditional situation will be removed and the contract will be forwarded to the Contractor for execution. 2. I3efinitions. a. "Department" means the 'T'exas Department of Transportation. b. "DOT" means the U.S. Department of Transportation, including the Office of the Secretary, the Federal Highway Administration (FHWA), the Federal Transit Administration (F'TAj, and the Federal Aviation Administration (FAA), c. "Federal-Aid Contract" is any contract between the Texas Department of Transportation and a Contractor which is paid for in whole or in part with DOT financial assistance. d. "DBE Joint Venture" means an association of a DBB firm and 1 yr mare other fum{s) to carry out a single business enterprise for profit for which purpose they combine their property, capital, efforts, skills aad 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. e. "Disadvantaged Business Enterprise" or "DB$" means a farm certified through the Texas Unified Certification Program in accordance with 49 CFR Part 26. f. "Good Faith Effort" means efforts to achieve a DBE goal or ether requirement of this Special Provision which, by their scope, intensity, and appropriateness to the objective, can reasonably be expected to fulfill the program requirement. g. "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." b. "Regular Dealer" is a firm that owns, operates, yr 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 ofbusiness. Ta be a regular dealer, the firm must be an established, regular business that engages in, as its principal business and under its own name, the purchase and sale ar lease of the products in question. A regular dealer in such bulk items as steel, cement, gravel, stone, and petroleum products need not keep such products in stock if it owns and operates distribution equipment far the products. Any supplementing of regular dealers own distribution equipment shall be by a long-term lease agreement and not on an ad hoc orcontract-by-contract basis. Brokers, 2-I 1 QOl?---461 02-46 packagers, manufacturers' representatives, or ether persons who arrange or expedite transactions shall not be regarded as a regular dealer. ®, "Broker" is an internnediary or middleman that does not take possession of a commodity or act as a regular dealer selling tv the public. j, °`Race-neutral DBE Participation"means any participation by a DBE through customary competitive procurement procedures. lk. "Race-conscious" means a measure or program that is focused specifically on assisting only DBEs, including women-awned businesses. 1. "Texas Unified Certification Program" or "'l~JCP"provides one-stop shopping to applicants far certification, suds that applicants are required to apply only once for a DBE certifies#ion that wil! be honored by al! recipients of faders] funds in the state. The TUCP by Memorandum of Agreement established six member entities to serve as certifying agents far Texas in sgecified regions. 3. Contractor's Responsibilltiea. These requirements must be satisfied by the Contractor. a. After conditional award of the contract, the Contractor shall submit a completed Farm No.SM5.4901, "DBE Commitment Agreement" for each DBE heJshe intends to use to satisfy the DBE goal or a good faith effort to explain why the goal could not be reached, so as to arrive in the Department's Business Opportunity Programs {BOP) Office in Austin, Texas not later than 5:00 p.m. vn the l0u' business day, excluding national holidays, after the conditional award of the contract. When requested, additional time, not to exceed.? business days, excluding national holidays, may be granted based on documentation submitted by the Contractor. b. DBE prime Contractors may receive credit toward the DBE goal for work performed byhis/her awn forces and work subcontracted to DBEs. A DBE prime must make a good faith effort to meet the goals. In the event a DBE prime subcontracts to a non-DBE, that information must be reported on Farm No. SMS.49U2. c. A Contractor who cannot meet the contract-goal, in whale yr in part, shall make adequate good faith efforts to obtain DBE participation as so stated and defined in 49 CFR Part fib, Appendix A. The following is a list of the types of action that maybe considered as good faith efforts. 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. : Soliciting through all reasonable and available means (e.g, attendance at pxebid mcetings, advertising, and/or written notices}the interest of all certified DBEs who have the capability to perform the work of the contract. The salicitatian must be done within sufficient time to allow the DBEs to respond to ii. Appropriate steps must be taken to follow up initial solicitations to determine, with certainty, ifthe DBEs are interested. 3-I1 000---461 02-05 ~ Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved. "['his includes, where appropriate, breaking out contract work items into econannically feasible units to facilitate DBE participation, even when the Contractor might otherwise prefer to perform the work items with its own forces. • 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. • Negotiating in good faith with interested DBEs to make a portion of the work available to DBE subcontractors and suppliers and select those portions of the work or material needs consistent with the available DBE subcontractors snd suppliers, sa as to facilitate DBE participation. Evidence of such negotiations includes the names, addresses, and telephone numbers of DBEs that were considered; a descriprion of the information provided regarding the plans and specifications far the work selected for subcontracting; and evidence as to why additional agreements could nox be reached for DHEs tv perform the wank. ® A Bidder using goad business judgment would canssder a number of factors in negotiating with subcontractors, including DBE subcontractors, and would take a firm price and capabilities as well as contract goals into consideration, However, the feat that there may be some additions! cost involved in finding and using DBEs is not in itself sufficient reason for a bidders failure to meet the Contract DHE goal as long as such cast are reasonable. Also, the ability or desire of the Contractor to perform the work of the Contract with its own organization does not relieve the Bidder of the responsibility to make goad. faith effort. Contractors are not, however, required to accept higher quotes fmm-DBEs ifthe price dit~erence is excessive ar unreasonable. Not re}acting DBEs as being unqualified without sound reasons based on a thorough investigation aftheir capabilities. The Contractor's standing within its industry, membership in specific groups, organizations, or associations and political ar social affiliations (far example union vs. non- union employee status) are not legitimate cause for the rejection or non- solicitatian of bids and the Contractors efforts to meet the project goal. Making efforts to assist interested DBEs in obtaining banding, lines of credit, or insurance as required by the recipient or Contractor. Making efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, ar related assistance or services. Effectively using the services of avaiiableminority/women community organizations; minority/women Contractors' groups; local, state, and Federal minariry/women business assistance offices; and other organizations as allowed on acuse-by--case basis to provide assistance in the recruitment and placement of DBEs. • if the Program Manager of the SOP Office determines that the Contractor has failed to meet the goad faith effort requirements, the Contractor will ~-~ ~ oao---461 02-06 be given an opportunity for reconsideration by the Director of the B®P Office, d. Should the bidder to whom the contract is conditionally awarded refuse, neglect or fail to meet the DBE goal or comgly with good faith effort reriuirements, the proposal guaranty filed with the bid shall become the property of the state, not as a penalty, but as liquidated damages to the Department. e. The preceding information shall be submitted directly to the Business Opportunity Programs Office, Texas Department of Transportation, 1 ~5 E. 11th Street, Austin, Texas 78701-2483. f, The Contractor-shall riot terminate for convenience a DBE subcontractor named in the cacnmitrnent submitted under Section 1.A.3,a. of this Special Provision. Prior to terminating ar removing a DBE subcontractor reamed in the cammitrnerst, the Contractor must have a written consent of the Deparh~nent. g. The Contractor shall also make a good faith effort to replace a DBE subcontractor that is unable to perform successfully with another DBE, to the extent needed to meet the contract goal. The Contractor shall submit a completed Form No.49t)l, "DBE Commitment Agreement," for the substitute DBE firm{s). Any substitution of DBEs shall be subject to approval by the Department. Prior to approving the substitution, the Department will request a statement from the DBE concerning it being replaced. h. The Contractor shall designate a DBE liaison officer who will administer the Contractor's DBE program and who will be responsible for maintenance of retards of efforts and contacts made to subcontract with DBEs. i. Contractors are encouraged to investigate the services offered by banks owned and controlled by disadvantaged individuals and to make use ofthese banks where feasible. 4, Eligibility of DBEs. a. The member entities of the TUCP certify the eligibility of DBEs and DBE joint ventures to perform DBE subcontract work an DOT financially assisted contracts. b. The Department maintains the Texas C)nified Certification Pragrarn DBE Directory containing the names affirms that have been certified to be eligible to participate as DBE's on DOT financially assisted contracts. This Directory is available from the Department's BOP Office. An update of the Directory can be found an the lntemet at h ;//www.dot.state.tx,uslbusiness/tu infa,htm. c. Only DBE firms certified at the time commitments aze submitted are eligible to be used in the information furnished by the Contractor as required under Section 1.A.3.a. and 3.g. above. For purposes of the DBE goal on this project, s-~ ~ ooa---as1 6Z-06 DBEs will only be allowed to perform work in the categories of work far which they are certified. d. Only DBE firms certified at the time of execution of a contract/subcantractlpurchase order, are eligible for DBE goal participation. 5. Determination of DBE Participation. When a DBE participates in a contract, only the values of the work actually performed by the DBE, as referenced below, shall be counted by the prime contractor toward 13BE goals: a. The total amount paid to the DBE far work performed with his/her awn forces is counted toward the DBE goal. When a DBE subcontracts part of the work of its contract to another firm, the value of the subcontracted -work maybe counted toward DBE goals only if the subcontractor is itself a DBE. Work that a DBE subcontracts to a nan-DBE fimn does not count toward DBE goals. b. A Contractor may count toward its DSE goal a portion of the total value of the contract amount paid to a DHE joint venture equal to the distinct, clearly defined portion of the work of the contract performed by the DBE. {1) A Contractor. may count toward its DBE goal only expenditures to DBEs that perform a commercially useful function (CUF) in the work of a contract or purchase order, A DBE is considered to perform a CUI+ 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 CUF, 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. In accardence with 49 CFR Part 26, Appendix A, guidance concerning Good Faith Efforts, contractors may make efforts to assist interested DBEs in obtaining necessary equipment, supplies, materials, or related assistance or services. Contractors m$y not however, negotiate the price of rnatexials or supplies used on the contract by the DBE, nor may trey determine quality and quantity, order the materials themselves, nor install the materials (where applicable), or pay far the material themselves. Contractors however, may share the quotations they receive from the material supplier with the DSE firm, so that the DSE firm may negotiate a reasonable price with the material supplier. In all cases, prime or other subcontractor assistance wll! oat 5e credited toward the DBE goal. - (Z) A DSE does not perform a CUF if its role is Iimited 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. 6-11 OOQ---461 0206 Consistent with industry practices and the DOT/Department's DBE program, a DBE subcontractor may entee into second tier subcontracts, amounting up to 70% of their contract. Virark subcontracted to a nan- DBEdoes not count towards DBE goals. if a DBE does not perform or exercise responsibility for at least 30% of the toter cost of its contract -with its own work force, or the DHE subcontracts a greater portion of the work of a contract than would be expected an the basis of normal industry practice far the type of work involved, it will be presumed that the DBE is not performing a GUF (3) A DBE trucking firm (including an owner operator who is certified as a DBE is considered to be performing a CUF when the DBE is responsible for the management aad supervision of the entire trucking operation on a particular contract and the DBE itself owns and operates at least 1 fully licensed, insured, and operational truck used on the contract. (a) The Contractor receives credit far the total value of the transportation services the DBE provides on a contract using trucks it awns, insures, and operates using drivers it employs. (!~) The DBE may lease trucks from another DSE firm, including an owner operator who is certified as a DBE. The DHE who leases trucks from another DBE receives credit for the total value of the transpartatian services the lessee DBE provides on the Contract. (c) The DBE may also lease trucks from anon-DBE fine, including from an owner-operator. The DBE who leases trucks from $ non- DBE is entitled to credit for the total value of transportation services provided bynon-DBE lessees not to exceed the value of transportation services provided by the DBE-awned trucks on the contract. Additional participation by non-DBE lessees receive credit only for the fee or commission it receives as result of the lease arrangement (d) A lease must indicate that the DBE has exc{usive use of and control over the trucks giving the DBE absolute priority far use of the leased trucks. Leased trucks must display the name and identification number of the DBE. (4) When a DBE is presumed not to be performing a CUF the DBIr may present evidence to rebut this presumption. c, A Contractor may count toward its DBE goals expenditures for materials and supplies obtained from a DBE manufacturer, provided that the DBE assumes the actua{ and contractual responsibility for the materials and supplies. Count expenditures with DBEs for materials or supplies toward DBE goals as provided in the following: 7- l l 0(30---4b 1 az-o~ (fl) if the materials ar supplies are obtained from a DBE manufacturer, count ! 00% of the cost of the materials or supplies toward DBE goals, (Definition of a DBE manufacturer found at 1 A.c.(1) of this provision.} For purposes of this Section (l.A.c.(l)), 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. (Z} If the materials or supplies are purchased from a DBE regular dealer, count 50°/a of the cost of the materials or supplies toward DBE goals. For purposes of this Section {1.A.S.c.(2)}, a regular dealer is a firm that owns, operates, ar maintains a store, warehouse, or other establishment an which the materials, supplies, articles ar 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) Ta 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 ar lease of the products in question. (B} A person may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stave or asphalt without owning, operating, or maintaining a place of business as provided in the first paragraph under Section I.A.S.c.(2}, if the person both awns and operates distribution equipment far the products. Any supplementing of regular dealers' awn distribution equipment shall be by a fang-term lease agreement and vat on an ad hoc or contract-by-contract basis. (C} Packagers, brokers, manufactwers' representatives, ar other persons who arrange or expedite transactions are not regular dealers within the meaning of section 1.A.5.a(2). (3) With respect to materials or supplies purchased from 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 fens or transportation charges for the delivery of materials or supplies required an a job site, toward DBE goals, providexi you detertnine 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 materiels and supplies themselves toward DBE goals. (Q} 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, ar for providing bands or insurance 8-1 l O(}0---461 D2-06 specifically required far the performance of aDOT-assisted contract, !award DBE goals, provided you determine the fee to be reasonable anti not excessive as compared with fees customarily allowed for similar . SerVlCes. . d. if the Contractor chooses to assist a DHE firm, other than. a manufacturing material supplier or regular dealer, and the DBE firm accepts the assistance, the Contractor may act soleljr as a guarantor by use of a two-party check far payment of materials to be used an the protect by the DBE. The material supplier must invoice the DBE who will present the invoice to the Contractor: The Contractor may issue a joint check to the DHE and the material supplier and the DBE firm must issue the remittance to the material supplier. Na funds shall go directly from the Contractor to the materia! supplier. The DBE firm may accept or reject this joint checking arrangement. The Contractor must obtain approval from the )T3epartment prior to implementing the use of joint check arrangements with the DBE. Submit to the Department, Joint Check Approval Farm 217$ for requesting approval. Provide copies of cancelled joint checks upon request. No DBE goal credit will be allowed far the cost of DHE materials that are paid by the Contractor directly to the material supplier. e. Na DBE goal credit will be allowed for supplies and equipment the DBE subcontractor leases from the contractor or its affiliates. i. No DBE goal credit will be allowed for the period of time determined by the Department that the DBE was not performing a CUF. The denial period of tune may occur before or a$er a determination has been made by the department. In case of the denial of credit for non-performance of a CUF of a DBE, the Contractor will be required to provide a substitute DBE to meet the contract goal or provide an adequate good faith effort when applicable. 6. Records and Reports. a. The Contractor shall submit monthly reports, af3er work begins, on DBE payments to meet the DBE goal and for DBE ar HUB race-neutral participation. Report payments made to non-DBE HUBS. The monthly report is to be sent to the Area Engineer. These reports will be due within 15 days after the end of a calendar month. These reports will be required until all DBE subwntracting or material supply activity is completed. Form No. SMS.4903, "DHE ar HUB Progress Report," is to be used for monthly reporting. Form No, 5MS.4944, "DBE or HUB Final Report," is to be used as a final summary of DBE payments submitted upon completion of the project. The original final report must be submitted to the Business opportunity Programs Office and a copy must be submitted to the Area Engineer. These forms may be obtained from the Department or may be reproduced by the Contractor, The Department may verify the amounts being reported as paid to DBEs by requesting copies of cancelled checks paid to DBEs on a random basis, 9- 71 000---46 l Q2-©b Cancelled checks-and invoices should reference the I]epartcnent's project number, b. DBE subcontractors and/or material suppliers should be identified on the monthly report by Vendor Number, name, and the amount of actual payment made to each during the monthly period. Negative reports are required when no activity has acctured in a monthly period. c. All such records musk be retained for a period of 3 years following campleti®n of the contract work, and shall be available at reasonable times and places for inspection by authorized representatives of the Department or the DOT. Pmvide copies of subcontracts or agreements and other documentation upon request. d. Prior to receiving final payment, the Contractor shall submit Form SMS.49U4, "DHE or HUB Final Report°'. If the DBE goal requirement is not met, documentation supporting Goad Faith Efforts, as outlined in Section 1.A.3.c. of this Special Provision, must be submitted with the "DBE or HUB Final Report." e. Provide a certification of prompt payment, the Prompt Payment Certification Form 2l 77, to certify that all subcontractors and suppliers were paid from the previous months payments and retainage was released for those whose work is complete. Submit the completed farm each month and the month following the month when final acceptance occurred at the end of the project. 7. Compliance of Contractor. To enswe that DBE requirements of this DQT assisted contract are complied with, the Department will monitor the Contractor's efforts to involve DBEs during the performance of this contract. This will be accomplished by a review of monthly reports submitted to the Area Engineer by the Contractor indicating his progress in achieving the DBE contract goal, and by compliance reviews conducted on the project site by the Department. The Contractor shall receive credit toward the DBE goal based on actual payments to the DBE subcontractor. The Contractor shall notify the Area Engineer if helshe withholds ar reduces payment to any DBE subcontractor. The Contractor shall submit an affidavit detailing the DHE subcontract payments prior to receiving final payment for the contract. Contractors' requests for substitutions of DBE subcc~ntractars shall be accompanied by a detailed explanation which should substantiate the need for a substitution. The Contractor may not be allowed to count work on Wose items being substituted toward-the DBE goal prior to approval of the substitution from the Department. The prime Contractor is prohibited from providing work crews and equipment to DBEs. DBE Goal credit for the DBE subcontractors leasing of equigment ar purchasing of supplies from the grime contractor or its affiliates is not allowed. l 0-1 l 400---461 02-Ob When a DBE subcontractor, named in the commii~nent under Section 1.A.3.a. of this Special Provision, is terminated or fails to complete its work on the contract for any reason, the prime contractor is required 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. A Contractor's failure to comply with the requirements of this Special Aravision shall constitute a material breach of this contract. In such a case, the Department reserves the right to teraninate the contract; to deduct the amount of DBE goal not accomplished by DBEs from the money-due or to become due Ilse Contractor, or to secure a refund, not as a penalty but as liquidated damages to the Department or such other remedy or remedies as the Department deems appropriate. B. A>~cle B. Race-Neutrsl Disadvs~ataged Business Enterprilse Partlcipation. It is the policy of the DOT that Disadvantaged Business Enterprises (DBE} as defined in 49 CFR Part 2b Subpart A, be even the opportunity to compete fairly far contracts and subcontracts financed in whole ~or in part with Federal funds and that a maximum feasible portion of the Department's overall DBE goal be met using race neutral means. Consequently, if there is no DHE goal, the DBE requirements of 49 CFR Part 26, apply to this contract as follows; The Contractor will offer DBEs as defined in 49 CFR Part 26, Subpart A, the opportunity to compete fairly for contracts and subcontractors financed in whole or in part with Federal funds, Race-Neutral DBE and non-DHE H~7B participation on projects with no DBE goal shall be reported on Form No. SMS.49U3, "DBE or HUB Progress Report" and submitted to the Area Engineer each month and at project completion. Payments to DBEs reported on Form SM8.4903 are subject to the requirements of Section 1.A.5, "Determination of DBE Participation." 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 ofDOT-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. o00---46i 02-0~ 2a04 specifications ~PECI~-L PROVISIOI~d 003--020 A~vsa~d amd E~ecutian of Contract For this project,l#em 003, "Award and Execution of Contract," of the Standard 5pecificatitins, is hereby amended with respect to the clauses cited below, and na other clauses ar requirements of this Item are waived ar changed hereby. Article 3.4, Execution of Contract, Section B, Bands is supplemented by the following: Provide a retainage bond in the amount oft 0% of the total amount paid vn the contract. The retainage bond is to be used as a guaranty for the protection of any claimants and the Departrtnent for overpayments, liquidated damages, and other deductions or damages owed by the Contractor in connection with the Contract. 1-1 Oa3---020 Q2-06 ATTACHMENT 3 ~' N S m 0 0 ~i v n ~ ~ ~, Z~~ ~. ~^n~ m -n p a $ a. ~ 0 0 o 'gym go -~2-1p go3 ao~ -n3 ~ ~~? ~~ m 2 ? ` ~ ~ ~ ~ N T ~ o~ m g'~ ~ ~ O~ S ~ w ~ ~ ~= Y 0 g y r m 7+ ~. m ~} ~ i] ~ 6 K ~ m W~~ 7S ~ a~ Z ~ ~ ~~T g n~8 ~$°~ ~~a ~~~ D i~ ~~~ ~~~ -y m~ v° chi ~ w~ m_ 3~ E 2 ~ x a ` S m ~ S 2 ~ ~ m ~ c S ~ ~ ~ Sm ~ ~ c ~• ~ p ° ~ cSs ~ ~ jA ~ m so ~ a ~ ~> > o ~ ~ x C~ Ch Vpi m ~ ~ N ~ ~ m° }~: o y T gp ~~ ~ 'a ~'~ pa ~ 4~'~ ~,r2~ ~o Q $S o Qo ~ ~ m~ ~ 2 ~ w y ~ - .Zl D v~ g ~ !A `4Z3 ~~ i ry~ ~CSa ~~ o ~i r~''cr ~ ~ ~ ~ mS.y ro .~ ~ [~ Corn £ Da3 Arc m ~ x ~ 9 ~'~ W~ NO~ ado om ~ ~ O ~ ~ ~i Q w ~. m S n n , ~' ~a~ - -.... m `~' ~ 3 C ~. 3 m ~m y ~~ 'm '" ,~ °~ ~-' tl~ s n~ ~' ~~m ~ ~ ~~ A 4 m ~ aS o ~'~ R { 7Dm ~ a ~m ~' ~ 0 Qe p(n ` . ~ lbw Teo _¢I'a a°3 ti-i a°~b ~f vm~3.a p ~ Q ~°+ ~ ..~30~ hii m O~6! fnn f ~Z~3 rn~~ ~ G~to~ m z.n? m Rm ~ _ O O. ~ ~ N ~•C ? _ ~ ~ ~ ~ O ~ ~ ~ N Gl r ~ ~ ~ ~~g =~~ fnn SRS G' O o-~S O m Pam m ~o pm ~y ~U 3 m~ m a y ~ R ~ $ ~ U ~ ~ g ~ ~ a o.. x 5'~ ~ ~ ~ m~ ~' ~~ ~ ~$ ~~~~. ~ ~ ~ ~ 3 ~~ N W a ~v n ~ m ~ ~ ~ (7 ~ n m ¢ m ~ ~ ~ fl C~ ~ N a~ ~ n ~ ~ N 0 _~ mm ~:, .~ ~ i ~ :j' i 31 , ~ ',I~,i ~ ~ 4S 4 ~~ Q ~o ~~ ~ rn a n ~ Q ~ ~ ~ ~~ ~ o ~ ~ O ~' z I a m z O .Zl C7 (D N n 0 cn ATTACHMENT4 RTTACHf~IENT 4 2044 Specifiratiocs SFECIAL PRQVISI[~N 009---007 1bleasure~en~ and P~ynne~g Far this project, Item 009, "Measurement and Payment," of the Standard Specifications, is hereby amended with respect to the clauses cited below, and no other clauses ar requirements of this Item are waived or changed hereby. Article 9.G. Progress Payaaeats, Sectloa A, Retaiaage is voided and replaced by the following: A. Retainage. Retainage will not be withheld on this project. Article 9.6. Progress Payments, Section B, Payment Provisions for Subcontractors is voided and replaced by the following: B. Payment Provisions for Subcontractors. For the purposes of this Article only, the term subcontractor includes suppliers and the term work includes materials provided by suppliers at a location approved by the department. Pay the subcontracoors for work performed within It) days after receiving payment for the work performed by the subcontractor. Also, pay any retainage on a subcontractor's work within 10 days after satisfactory completion of all of the subcontractor's work, Completed subcontractor work includes vegetative establishment, test, maintenance, performance, and other similar periods that are the responsibility of the subcontractor. For the purpose of this Section, satisfactory completion is accomplished when: ® the subcontractor has fulfilled the Contract requirements of both the.Department and the subcontract for the subcontracted work, including the submittal of all infornnation required by the specifications and the Department; and • the work dare by the subcontractor has been inspected and approved by the Department and the final. quantities of the subcontractor's work have been determined and agreed upon. The inspection and approval of a subcontractor's work does not eliminate the Contractor's responsibilities far all the work as defined in Article 7.14, "Contractor's Responsibility for Work." The Department may pursue actions against the Contractor, including withholding of estimates and suspending the work, for noncompliance with the subcontract requirements of this Section upon receipt of written notice with cuff cient details showing the subcontractor has complied with contractual obligations as described.in this Article. These requirements apply to all tiers of subcontractors. Incorporate the provisions of this Article into all subcontract or material purchase agreements. 1-1 Ofl9---007 02-06 ATTACHMENT 5 T„UCT' DBE Alphabetic Listing - A , ' ' r~TTACHIV~ENT 5 ~ ~ T~cQC)T ~~~~ Home ~ Contact Us ~ Too[s & Plug-Ins TUCP ®EE ~4lphabetic Listing - A Last Update: Monday, June 12, 2006 A~B~C~D~E~F~G~H~I~J~I<~L~M~N~O~P~4~R~5~T~U(V~W~XjYJ2~0-9 A & A CONSTRUCTION COMPANY P.O. 130X 202212 ARLINGTON, TX 760060600 Phone: 817-267-2757 Types of Work performed: District(s): "Gertifiied by: NCTRCA Region vf: NCTRCA Email: trans@aaconstructioncv.com Fax: 817-267-2887 Highway, Street, and Bridge Construction(237316) Other Construction Material Merchant Wholesalers(423396} Site Preparation Contractors(23$910) STATEWIDE DISTRICTS A & A OFFICE PRDDUCTS P.O. BOX 26292 i-iOUSTON, 7X 772256292 Phone: 713-664-4$q8 Types of Work Performed: District(s): A 8~ B COLLEGE EXPOSURE PROGRAM P.O, t30X 260952 CORPUS CHRiST1, TX 78426500{) Phone: 361-387-1702 Types of Work Performed: District(s): *Certified by: HOUSTON Region af: HOUSTON Email antonivchua@pdq.net Fax: 713-554-4173 Furniture Stores(442110} STATEWIDI= DISTRICTS *Certified by: CCRTA Region of: CCRTA Email; r21650@aol.com Fax:361-767-6630 Educa#ional Support 5ervices(611~710) STATEWIDE DISTRICTS A & B DEt_IVERY SERVICES "'Certified by: NCTRCA 5429 CHERRY GLEN LANE t4egion af: NCTRCA DALLAS, TX 752320060 Email: Phone: 214-371-1756 Fax: 214-375-8938 Types of Work Performed: General Freight Trucking, Local(484116} Districts}: STATEWIDE DISTRICTS A & B ENVIR0MENTAL SERVICES, INC, 1D106 EAST FREEWAY, SUITE 100 HOUSTON, TX 77629 Phone: 713-453-6060 Types of Work Performed: District(s): A 8 O INSPECTIONS P. O. BOX 11106 }i0U5TON, TX 77293 *Gertified by: HOUSTON Region of: HOUSTON Email: kittu2@hal-pc.org Fax:713-453-6691 Testing Laborataries(541360} STATEWIDE DISTRICTS "Certified by: HOUSTON Region o#: HOUSTON Email: leep_soufh@yahoo.com Page. ~ of 62 Search; Search TxDOT Go http://www.dot.state.tx.us/insdtdot/orgchartlcmd/cserve/tucp/tucp~a.)itm 6/16/2DQ6 ATTACHMENT 6 za~o Annual DB1; Gaai {FF~WA} - 1 -- ~::~~ ;.~.r~; _._;rz~;as~w;~a~° 17~epartrr~rr~ ~ lhrmpgrtaltan Overall Annual DBE Goal for Highway design and Construction ~~s~~~ Y"~~~ ~~~ ~~ ~ ~ , zoia Annual pBE Goal (FHWA) _ 2 ~ p `T~bl~ ~f G~nt~n~s 1. Executive Summary a. Process Summary b. Results Summary 2. Process and Format a. Process b. Format 3, Step 'i : Establish a Base Figure a. Bidders List Approach i. Analysis of Available Bidders b. Estimated Weight of Expenditures c. Base Figure Calculation 4. Step 2: Adjustment to Base Figure a. Adjustment 1: DBE Directory b. Adjustment 2: Texas Disparity Study c. Adjustment 3: Supportive Services Survey d. Adjustment 4: Pas# Par#icipation e. Adjustment 5: Public Consultation ~ Other Evidence 5. Adjusted Goal B. Race-Neutral and Race-Conscious Participation 7. Public Comment 8. Attachments A. List of Memorandums of Understanding B. Example of Memorandum of Understanding C. Public Consultation Meeting Invitees D. Public Comment Notifications ,, zoo Annual DBE Gaal (FHWA) - ~ ~~~~~~~ °~ e ~~~~~~'~~ ~~~~~~~ The Texas Department or Transportation (TxDOT) submits the fallowing Disadvantaged Business Enterprise (DBE) goal ,methodology to the United States Department of Transportation (DOT} Federal Highway Administration (FHWA) for review in accordance with 4g Code of Federal Regulations (CI=R) Part z6.45. Some sub-reupients of TxDOT highway design and construction funds are electing to adopt the TxDOT Memorandum of Understanding (MOU} for qBE Programs and our methodology to establish their overall DBE goat. Attachment A provides a list of entities that have signed an MOU with TxDOT. Attachment B provides an example of an MOU. Process Summary The goof methodology consists of two steps, the base figure far the relative availability of DBEs and any adjustments to the base figure based on available evidence. in Step ~, the base figure is established through the use of TxDOT's i3idders List and takes into account an estimated weight of expenditures based on contracts projected for the upcoming year. In Step z, TxDOT reviews available information and new evidence presented in a public consultation meeting and takes it into account in determining an adjustment to the base figure. The base figure and the adjustments to the base figure are used to determine the overall goal. The overall goal is farther defined as race-neutral and race-conscious based on the amount that TxDOT plans to meet through race-neutral means. TxDOT provides far #wo opportunities for public participation. The first opportunity was a public consultation meeting held an August ~7, zoo9, where the public was invited to discuss evidence that would influence the relative availability of DBE ar other issues that influence Di3E participation, in the second opportunity, the public can review the methodology until October ~8, zoog and to submit comments by November z, zoog. TxDOT will #orward USDOT an amendment to the DBE Goal Methodology should there 6e any changes. Results Summary The DBE goal methodology justifies an FY zoo overall DBE goal of ~~.5%. TxDOT plans to meet the overall goal by ~.SY race-neutral means and the remainder of ~..o~ through race-conscious measures. TxDOT will monitor DBE participation for federal-aid highway design and construction projects during FY zo7o fnr race-conscious and race-neutral achievements of the DBE goal and make necessary adjustments as needed based on the DBE program requirements. zoo Annual DBE Goal (FHWA) - ~ SIECTI®N Z: PROCESS AIV~ FORMAT Process The process far setting an overall goal is defined in ~ z6.4S. The CI-R identifies August Est as the submittal date (see ~zb.45(f)(~)), however, given the recent guidance frarn USDOT on the public consultation aspect of the goal and a recent FMWA review of TxDO'f's DBE Program, U5DOT allowed an extension to September i5, zoag. The methodology includes: a description of the methods used to establish the goal, the base figure and evidence used for its calculation, summary listing of available evidence and wherever necessary an explanation on why it was not used, proposed projections for the portions of the goal to be met through race_neutral and race- conscious means {see ~ zb.45(f){3)). The methodology also expands on the TxDOT's effort to obtain public participation through public consultation for evidence that may influence adjustments to the base figure and by extending public comment on the proposed methodology (see § zb.45{g})• TxDOT is not required to have the operating administration's concurrence to implement the DBE goal; however if the operating administration's review suggest there are concerns over the methodology, it may, after consulting with TxDOT, adjust the overall goal or require TxDOT to da so {see § z6.45(f)(4}). TxDOT's overall goal provides for the participation of all certified DBEs. The overall goal is NOT subdivided into group-specific goals (see §z6.45(h)). Format 1n addition to improvements to the process, TxDOT also revised its format of the goal methodology document. Previous years' comments from various organizations like USDOT, Association of General Contractors (AGO), contractors and TxDOT staff lead to conclude that the methodology required more narration and a summarization of the process for setting an overall DBE goof and greater flaw in documenting the methodology. This resulted in a more user-friendly document. SECTION 3: STEP '~ -ESTABLISH BASE FIGURE For Step ~, TxDOT takes .into account available evidence in determining the base figure for the. relative availability of DBi=s. In determining the base figure, TxDO~i~ considered the type of contracts anticipated far the upcoming year. This calculation results in a base figure of ~o.6q. Bidders List TxDOT begins the goal setting process by determining the base figure far the relative availability of DBEs {see, ~zE.45(c)). TxDOT uses a "bidders list" approach based an hest available data; as is described in section §z6.45(c)(z). . ` ~ 201o Annual DBE Goal (FHWA) -`~ The first step in this approach is to determine the number of DBEs that. bid on -DOT- assisted prime contracts and subcontracts. The next step is to determine the number of all businesses that bid on DOT-assisted prime contracts and subcontracts for the same period. Finally, the base figure is calculated by dividing the DBE bidders by all bidders. In addition, TxDOT determined an estimated weight of expenditures to TxDOT contracts, which it applied to the base figure. TxDOT's Bidders List consists of ap available data on primes and subcontractors that bid on DOT-assisted contracts, including DBEs. The list is qualified further by including appropriate data from pre-qualified highway construction contractors, pre-certified professional service providers, and other subcontractors and material suppliers on highway construction projects. The bidders list determines firms that are ready, willing, and able to participate in Tx DOT's market as the TxDOT's Bidders LESt. (See Table 3.~} Table 3.'1. TxDOT's Bidders k.ist All Firms Certified DBE Firms Hi hwa Construction z z8 ~ a En ineerin Architecture $ 8 Analysts of Available Bidders There have been recent concerns that the TxDOT's bidders list is under-representing subcontractors, because- it does not have available information on subcontractors that bid to contractors on non-winning bids. Traditionally, TxDOT has indicated that the large volume of contracts and subcontracts available provides a significant base that sustains the unavailable information. TxDOT conducted a survey to help justify its assertion. In December aoo$, TxDOT included a brief subcontracting survey in a!1 their federal- funded contract proposals for that month, It then compared the information from these surveys against the subcontract bid information from low-bid contractors and found that there was an insignificant difference in DBE availability between the two groups. 7xDOT plans to do periodic surveys in different months throughout the year to continue to monitor the correlation between low-bid subcontract bidders and the subcontract bidders to non-winning bids. Estimated Weight of Expenditures in order to more accurately define relative availability of DBEs in DOT-assisted contracts, TxDOT takes into consideration the types of contracts anticipated in the upcoming year against the relative availability of DBEs. TxDOT identifies two types of 1=ederal-aid contracts; highway construction and engineering(archite.cture contracts. l=urther analysis indicates that the ratio of . ~ ~' ' ~ ~ zoo Annual DBE Goal {FHWA) - h contract types, estimated weight of expenditures, indicates !ow projections for engineering]architecture work. The propartion of federal aid for highway construction and engineering]architecture contracts remains the same for FY zo1o. "fable 3.2; Estimated Weight of Expenditures Indust Percerst Hi hwa Construction $X En ineerin ~Architectt~re a~ Base Figure Calculation The base figure is calculated by combining the proportion of the relative availability of DBEs in highway construction and the proportion in engineering]architecture. The proportion of relative availability of DBEs in highway construction is the calculated ratio of DBEs in highway construction {DBE in highway construction divided by all firms in highway construction] against the anticipated portion of highway construction work. The same evaluation is performed on the relative availability of DBEs in engineering]architecture work. The calculation {see Figure 3.~) results in a base figure of ~o.6°b. Figure 3.'i: Base Figure Calculation # HighwayConstructionD$E # EngineeringArchitectureDBE Base Figure = 0.48 ~- U,U2 x ] 0(7 ~# HighwayConstructianFirms ~ ~ # EngineeringArchitectureF'irms 0.98 328 ~ + 4.02 f 3 g ~ x 1 UO = 0.101031 + 0.005185~x 100 = 0.106216 x 100 =10.52 Base Figure 1 C?.63~ SECTIC3N 4~ STEP 2 --ADJUSTMENT TC3 BASE FIGURE TxDOT examines al! available evidence to determine any adjustments to the base figiJre. A summary of the evidence considered includes: DBE directory analysis, State of Texas disparity study, Supportive Services survey analysis, evidence made available through Public Consultation Meeting, and past participation. Adjustment t : DBE Director} TxDC7T preformed an analysis to determine the relative availability of DBE5 by utilizing the TEJCP DBE directory and the Census Bureau's zoo? County Business Patterns {CBP) data as suggested ~zb.45(c). The source for DBEs is the TUCP DBE Directory (www.dvt.state.tx.us]business]tucpinfo.htm}. The relevant highway construction North Arnerican Industry Classification System (NAILS} Codes were ~ ~ ~ . ~ ' ~a1o Annua[ DBE Goal {Ff-iWA} '7 identified and used to determine the availability of the business. The overall number of all ready, willing and able businesses in TxDOT's market is determined by the zoa7 Census Bureau's County iusiness Patterns data {see Table ~}.~). Table 4.1: Relative Availability Base on DBE Directory ~~~ dttttustr•Y Alt Arms ~ ~~~ ~.~~i1C5 UrE€~~:rgrc~~;~~d utlli't~' Tj~~~ 1G~ . . ~~7:13c~ t:~.rkd;~.=.s~:~~~ant;i utl~t}~ 53~' ~~t ~~~~"t~ t~s~l•~~It, ~e~~ci~~, Mirt~r ~tr~~tt.r~~ ;~a~~ ',~~ ~3;~'~~3© F?l~~i Areas -. ~--- 3~~ ~ y to ,~$ `a ~ ~ i~ ~ ti~j~x ~ : rr ~ ~ c r e t~, i ~`~uc '~i t~ f t,~ ~ ~ ~r~rS ~ y :L ~~~~~~ yy Xg ~ a~ }1~y ~p 3p c [ 1 P ~ e .~ i 1 tS ~ -Y i rA1~~~Sll i~ ~ri3.1 F:~1. ~4T'I ~~i 4"~ V`L'.~~Si.Ri.3 ~tll l.i l.~I ~" y y ~1.G1 S L ~~ ^ a [ ~ ?3~i~ tt~ F ari,i~v,r~~'ic ~'a~~ ~ t3 ~.3'~i~]c~~3 N6ateroal ss~pp}3~'T.s ~.,ffa:~ 77~ .. a~~~Qf3~ N~ulrig £i,~t:~f7 ~~?t~ ~'~}'F~'ifl ~~ ArCI"1It~'Gt5 lye ~~ `. ~.~~~~U ~~~l,lt'V~~'.Cfi'S ~~~ ~;? °,~~' 3~~f3 lri7rld~Ld~1lrM~ 4a~:1 f!3,~. Total ~4r3y.2 tr83~} w The NAICS includes alk 6-digit NA3CS under this code. The base figure is calculated by taking the identified availability of DBEs against the identified availability of identified businesses. The calculation {see Figure 4.~) results ire a base figure of 5.39. Figure 4.1: Base Figure Caiculatian Base ;~'igure = ~ # DBE } x t 00 # AIIFrrms _ 1,841. x ] QO 34,312 S.a6% A comparison of the DBi< availability derived from the DBE Directory(CBP is significantly smaper from the availability derived from the TxDOT's Bidders List. The Directory approach yields a DBE availability of 5.390 while the TxDOT bidders list yields a ©BE availability of 70.6. We feel that this significant variance requires further evaluation and may be due in part to the identified highway fVAlCS are to restrictive. Another factor that may be influencing this variance is the fact that many of the firms ~' . zoo Annual DBE Gaal {FHUVA) - 8 identified da not do business with TxDOT. We determined that this available information justifies a -~~ adjustment to the DBE Gaal. Adjus#rnent 2° Texas Disparity Study in ~gg4 the State of Texas mandated a disparity study (State of Texas disparity Study: A Report to the Texas Legislature as Mandated by H.B. zbz6, 73rd legislature) to "assess the experience of minority and woman-owned businesses in Texas and the effectiveness of the State's torrent program in assisting them." The study examined "whether race and sex disc~iminatian limits the ability of companies owned by minorities and women to do business with the State of Texas." TxDOT did not use this evidence due to the fact that market factors have changed significantly over the past rt5 years. However, the State of Texas is in the process of conducting another Disparity Study that should. be ready by zoio, TxDOT will evaluate this evidence when it becomes avaiiabie and wilt consider using it in future goal methodologies. Adjustment 3: Supportive Services Survey In FY zaog, TxDOT participated in various functions to improve opportunities and communication with DBEs. The majority of this participation came through the Business Opportunity Program Supportive Services. In i=Y zoog they partnered with AGC, joined farces with the Texas Business Opportunity & Workforce Development {TBOWD) Program, Smai1 Business Briefings, as well as other internal programs such as Technical Assistance Program and Learning information Networking Collaboration {LING) Program. Through their participation they obtained feedback from participants. The FY zoog Federal DBE Accomplishment Report and FY zoio Supportive Services Work Statement indicate that many business needs and concerns have been identified and as a result, lack afi opportunities. The needs assessment revealed deficiencies in the areas of financial management, risk management, legal, marketing, subcontracting, bidding, bonding and aspects of construction industry barriers. For FY zoto, TxDOT plans on improving on programs that will target ail the needs identified. Same of the programs that they will continue to develop and improve upon include, but are not limited ta: - Technical Assistance Program (TAP): for specific training including computers, estimating, office software, marketing and financial management. - Learning, Information, Networking and Collaboration (IiNC): for training on general processes, bidding, networking, and general training. - Texas Business Opportunity & Workforce Development {TBOWD): a partnership with Cedar Valley Community College, i ' ' s ' zaio Annual DBE Goal {FHWA) - 5mali Business Briefings: far up-to-date information on procuring opportunities and procedures. Other Economic Opportunity Forums: to make genera! knowledge available of programs available to assists DBEs and other minorityJwomen awned businesses. The TxDOT's BOP Supportive Services Group is working with various entities to improve the resources and increase opportunities far DBEs. This indicates that the future attainability of DBt= is much greater. We determined that the accomplishments and future endeavors indicate a stronger race neutral participation for the near future; however it is not a significant indicator of overall participation. This information available justifies increased considerations to the race-neutral portion of the goo! and a ~o.~% adjustment to the DBE Goal. Adjustment 4: Past Participation TxDOT determines that an adjustment for past participation is appropriate. TxDOT utilized goal setting guidelines ("Tips for Goal-Setting in the DBE Program") from the Office of Small and Disadvantaged Business Utilization (OSDBU) web site which includes a method far determining an adjustment based on past partidpation. This adjustment considers past participation as a relative gauge of anticipated participation. The adjustment to the base figure is determined with the median of past participation. The median is used instead of the average ar mean because it excludes outliners; abnormally high or low numbers. TxDOT uses six (6) completed years of past participation {see Table 4.z) in computing the median value, therefore the value is determined by averaging the two middle values. The resulting calculation yields a median value of t3.a% (see f=igure 4.z). Table 4.2: Recent Pas# ©BE Participation fiscal Year Federal: Awards D6~ Awards DoE X Achieved aoo * $~ t8i z z6 ~iio zt 8 X zoo8 Si S o8~ bzo z ~ zz z i aX zoo $z 6 6 z 8~ $ o a i o8i n. 6X zoa6 $z 6 o z 6 $ z 8b 1z. ~ zoo ~ ~ zoo 8 6z ~z.azX zoo $z iz zz ~ 60 0 1 z y .USX zaa $z b 8 88 6 aoo i .a % * Note: FY zoag is not complete. Available figures only include data for the first six- months. Figure 4.Z: Median Value _ (12.74+ ~3,~0) _ z ~z.95% = ~3.a9~ ~e v ~ , ~ zozo Annual DBE Goal (FNWA) - 10 We determined that past participation is a strong indicator on actual DSL participation and that this available information justifies a +i.~~ adjustment to the DBE Goal. Adjusfr>r~enf 5: 1'ub!!c ~onsultafion Ev-dence The purpose of the public consultation is to gather evidence and information that will assist in the development of the FY zolo DBE Goal Methodology, As part of this goal setting process, a public consultation meeting was held on August t7, zoog, to meet and consult with "minority, women and general contractor groups, community organizations and other officials or organizations which would be expected to have information concerning the availability of DBEs and non-DBEs, the effects of discrimination on opportunities far DBEs, and TxDOT's efforts to establish a level playing field for the participation of DBEs (see ~z6.45(g)(~))_" (See Attachment C: Public Consultation Meeting invitees). business development organizations, chambers of commerce and professional associations were mailed an invitation and a detailed agenda to participate in a face-to-face exchange aimed at gathering information regarding establishing the overall DBE goal. To ensure their participation, atelephone follow-ups were made to assess whether ar not they have relevant information to the goal setting process. The salient comments gathered indicated, There are 4zo,oao Hispanic-awned businesses in Texas and how many of those that qualify are not DBE certified yet and need to be identified. ~` There was no evidence of discrimination presented, however, a discussion regarding discrimination suggested that perhaps there is discrimination but is not being reported. Is there a mechanism in place for reporting discrimination and is the information provided for reporting such cases. ... inviting prime contractors to participate in the LILAC (Learning information fVetwarking Collaboration) Program and meet one on one with DBE firms and learn more about possible future DBE firms and their expertise, TxDOT's Business Opportunity Support Services and Outreach in conjunction with Association of General Contractors, provided evidence of programs and initiatives that were developed and conducted araunci the state for small and minority-owned businesses. Four Small Business Briefings were conducted around the state in November zoo8, February, March and April zoog, providing information on how to do business with TxDOT and the state in construction, goods and services, inforrr~atian technology and professional services. There were approximately yao minority and women owned businesses participating in these briefings. Follow-up interviews with sample of non-DBE-certified minority and women business owners found that mast knew of DBE certification and were interested in certification but had not actively pursued it due to lack of information. 2a~o Annual DB#w Goal {FHWA) - 1' ] ° This information is taken into consideration and upon further analysis TxDOT concluded that these initiatives will assist DSEs obtain work through race_neutral means. Therefore this evidence is considered in establishing the proportion of participation that Tx DOT expects to meet through race-neutral means. The information and evidence received was not sufficient in justifying a DB1= Goal adjustment. SEECTION 5: ADJUSTED GOAL All available evidence is taken into consideration to determine the adjustments to the base figure. An adjustment for past participation is appropriate; therefore the base figure and median- past participation ad}ustment are averaged to reveal the recommended adjusted gaa! (see Figure 5.i). The recommended DBE Goal for FY z010 i5 71.5%. Figure 5.1 : Adjustment to Base Figure Calculation Adjusted Goal =Base >"igure + Adjustment 1 + ..,+ Adjustment 5 10.6+-1.0+0.0+0.5+1.5+O.D = 11.6% Proposed DBE Goat 'I'I.~% SECTION fie RACE-NEUTRAL AND RACE CC)NSCIOUS PARTICIPATION The goal methodology includes the methods used to compute the DBE goo[ and a determination of how TxDOT plans to meet the goals through race-neutral and race-conscious measures (see §z6.45(fj(3} and ~z6.51(c}). TxDOT plans to meet the "maximum feasible portion of [the] averal! goal by using race-neutral means. (see §26.5~(a))." TxDOT examined the race-neutral attainment for the past six (6) complete years (see Table 5.~} to determine the maximum race-neutral participation. On average, TxDOT achieved 7.35% (see Figure 6.~) of the goal through race-neutral means. The proposedrace-neutral goal for FY zoo is 7.59. ~ ~ ~ 1 ~ 1 ~ I } zoo Annual DBE Goal (FH1n/A) - 1? Ta3~ie 6.'B: Race-Neutra6 and Race-Conscious Gcaal vs. Achievement ~p~ ArhiovomanF Fiscal Year Race- Neutral Rate- Conscious Overall Race- Neutral Race• Canscfous averal} ao03 6.4a% 6,c5oX tz.4o% 6,86X 8.a3% t5.og% xao4 ~ S.ooX 7.44X. tz.44X 5.89/ 7.z7% t3.t6% zaa5 :5.009 7.709 tz.7o:o 5.g6X 6.a5X tz.azg' 2006 6.547 5.o0X ta.54q &.~4~ 4.50% ~a.74q zoo? 6.~zq b.oo tz.iz2 6.769' 4.8x9' tt.56 zpo$ 6.~zX 6.o0X ta.ta% to.SzX 4.tgX t4,73Y z0og~' 6.O0X 5.oa% tti.ooY z.4iX 6.gzX g.33X * Note' FY zoa$ is not complete. Avail able figures only Include data for the first six-mont hs. Figure 6.#: Average Race-Neutral -6,56+5,89+5.96+8.14±6Y76+14.52 6 -~44.13~ b 7.35 Proposed Race Neutral 7,5 TxDOT wif[ establish race-conscious measures, contract goals, to meet the balance {see Figure 6.z} of the overall Baal (see ~z6.5~{d}}. The proposed Race-Conscious Goa[ far FY zoo is 4.0%. Figure 6.2: Race-Conscious Calculation RaceConscious +RaceNeutral = OverallGoal RaceConsciaus = OverallGoal -RaceNeutral =11.5--7.5 4.09 SECTION 7: PUBLIC COMMENT in accordance with ~ z6.4S(g}(z}, TxDOT published a Public Notice announcing the proposed overall goal and methodology in general circulations, Texas Register and minority and trade focus papers sate wide (see Attachment b: Public Comment Notifications) on September ~8, zoog, inviting public comment far 45 days. The public will be afforded the opportunity to review the methodology until October ~8, zoog and to submit camrnents by November z, zoog. TxDOT will forward USDOT an amendment to the Di3E Goal Methodology should there be any changes. Office of Civil Rights staff will also be available at a public comment meeting on October z, zoog, from ~:oo p.m. to 3:0o p.m. at the Texas Department of Transportation, Office of Civil i=tigi7ts, zoo East Riverside Drive, Austin, Texas 78704. Department staff wi11 provide an overview of the goal-setting process and the FY zoo Annuai DBE Goal {FHWA) - ~l3 z.o~o DBE Goal Methodology. The public i5 invited to present oral or written comments at~ the meeting. SE~T~~N ~: ATTACHMENT'S Attachment A: List of Memorandums of Understanding Attachment B: Sample Memorandum of Understanding Attachment C: Public Cansuitation Meeting Invitees Attachment D: Public Comment ~4otifications ,~ ' zc~3o Annual DBE Goa] (E~iWA) - l4 Attachment A List of lViier~torandut~s ®~ t3nderstanding The #ogowing sub_recipients of TxDC?T highway design and construction funds adapted the TxDOT Mernorandurri of Understanding (MOU} for pi3E Programs. The agencies gave attended training programs sponsored by TxDOT regarding the DBi: Program. Alamo Regional Mobility Authority Bexar County Camino Rea! Regional Mobility Authority Central Texas Regional Mobility Authority City of Cedar Park City of Leander City of Manor City of San Antonio City of San Marcos Harris County Hidalgo County Montgomery County Bass-Through To11 Agreerr~ent North Texas Tollway Authority Travis County Wiliiarrtson County ` zo~a Annual DBE Goal (FHWA) - ]'~ f~ft~+~hment B Sample li~emorandum of llnders~ar~ding hIE~IORANDi3hf OF IJNDERSTA;h`DING R~GAR13iNG THE ADOPTION OF THF'CEJiAS DEPARTMENT OF TRA~iSPORTATIO~"S FEDERAI,LY•APPROVED DISADVANTAGED BUSINESS Ei~TERI'RiSE PItOCW#vf BY THE CENTRAL TEXAS REGCONAL ~IOSILITY AUTHOI2~T'ti' This Memonltrdum of Understanding is by and between rile TEXAS DEPARTMENT OF 'T'RANSPORTATION ("TxDDT"), an agency of the State nC Texas; and the CENTRAL TEXAS REGIQNAL ]FIOBIL[TY Al;]TIiORITY (•'the CTRh•IA"), a Texas regional totlway authority organized and existing pursuant to Chapter 26, Texas Transportation Cade. Whereas, from time to time from CfItMA receives federal funds front the Federal Highway Administration ("1-'HWA") through TxDOT to assist the CTRMA with the construction of turnpike projects; and Whereas, the CTRMA, as asub-recipient of federai funds, is required by 49 CFR 26, to implement a program for disadvantaged business enterprises ("DBEs"), as defined by 49 CFR 36 ("DBE Program'"); and Whereas, TxDOT has implemented a DBE Program that is approved by the Federal Higltway Administration (FHWA} pursuant ro 49 CFR part 26; and Whereas, as a condition of receiving federal funds from FI-fWA through TxDOT, certain aspects of tFie CTRMA's procurement of construction services are subject to review and/or concurrence by TxDOT; and Whereas, the CTRMA and TxDOT undertake substantially similar roadway construction projects and construct their respective projects using substantially the same pool of contractors; and Whereas, the CTdtMA desires to implement a federally Compliant D$l; Program by adopting the TxDOT approved program, as recommended by FHWA; and Whereas, TzDOT and the CTRMA Fed it appropriate to enter into this Memarandutn of Understanding [q memorialize the obligations, expectations and rights each has as related to the CTRiVfA's adoption of the TxDOT D$$ Program to meet the federal requirements; Now, therefore, TxDOT and the CTaNL4, in consideration of the mutual promises, covenants and conditions made herein, agree to and acknowledge the following: (1) TxDQT has developed a L7B$ Program and annually establishes a D$E gout for Texas that is federally approved and compliant with 49 CFR 26 and other applicable laws and regulations. l3? The CT')ZIvW is asub-recipient of federal assistants for roadway construction projects and, ii? a~cardance with -19 CFR ~ 36.31. must implemenr a federally approved DBE Program. The C']'R.1,1A reLeiv~s its federal assistance through 7tDOT. As asub-recipient, the CTfLti1A ttaS the option of developing its ou~n program or adopting and operating undCr T.xDOTs federally apprn~zd Q6E Program. The FIiV4'A recommends that sub-recipients, such as the CTft-441, adopt the p9E program, udministcre:l through T.+cDO'i'. and the t~"I'R`tA ikrcby chooses to adopt the '1'xf]OT DBF Yrograrn. t3) Th15 Vlcn]orarTdUlT? Of f;nci.:rsty?din2 : ti iderxcs FHV~',~'s and T..UU"f's cons~ix to the a~aption ~•I :'rte "]-xD(]T DBE Program by the CTR~G1 t,~ ath~e•.e its DBE participation in CTR\L~ Fe:dtraiiy lssistLJ raadti;ay construction projects. zoo Anntaa[ ©BE Goal (FHWA) It, (j} The CTIZMA will submit D131; szmi-annual progress reports so TxDOT. (}L) The CTRMA will participate in TxDOT sponsored training classes to include topics on DBE Annual Goals, DHE Construction Project Goal Setting, DSE Contract Provisions, .tnd DBE Contract Catrtpliance, which may include issues such as DBE Commitments, I)laE Substitution, and Finat D8E Clearance. TxDOT will include D13E contactors performing worl: on the CT}L'VIA projects in the DBE Education and Outreach Progran>.s. (6) in the event there is a disagreement between TxDOT and the CT'luvlA about the implementation of the TxDOT DBE Program by the CTRMA, the parties agree to treat within ten (10) days of receiving a written request from the other party of a desire to meet to resolve any disagreement. The parties will make good faith efforts to resolve any disagreement as efFiciently as is rensonably possible. If the parties arc not able to resolve any material disagreement to the satisfaction of all parties, either party tray terminate this Memorandum of Understanding by written notice to the other party and FHWA. (7} This Memorandum of Understanding becomes effective upon execution by all parties and automatically renews each year unless a party notif-tes the other parties of -its intent to terminate tho agreetrtent. (i3) If this Memorandum of Understanding is terminated for any reason,. the CT1tMA wi31 be allowed reasonable time in which to seek approval for a,D13E Program without being deemed nan- connpiiant with 46 CFR Part 26 or with an approved DBE Program. (9) This Memorandum of Understanding appiies only to projects for which the CTR-ylA is a sub-recipient of federaE funds. The CTRMA may also implement a Minority and Women-Owned Smttll Business Enterptise (17/W/513E) policy and program that appiies to projects for which it is not asub-recipient of federal funds and which are not subject to the TxDOT DBE Program, The CT1tMA may, at its option, use some aspects of the'I~cDOT DBE Program and other similar programs in implementing its other policies and programs. (10) The following attachments to this MOU are incorporated as if fully set out herein for all purposes: Attachment A -FHWA Memorandum HCR-I/HIF'-1 (relating to access required by the Americans with Disabilities Act of 1990 and Section 50~ of the Rehabilitation Act of 1973); Attachment B -SPECIAL PROVISION 000-461; Attachment C -Comprehensive Development Agreetitent (CDA) DBE Provisions (with TxDOT's DBE Program and its 10 Attachments) and Attachment D - 49 CF'it X26.13 (contractual assurances}, In the case of any conflict between the SPECIAL. PROVISIDN, the CDA DBE Provisions and TxDOT's DBE Fragrant. the provisions of tfze first two documents shall prevail in regard to CDAs. I~XECL"TED by TcDOT and [lee CI-1L~•[A, acting through cacti duly auth~arized offi:ial and ~f~rnitir or: t!;~ latest date si~rted. .~PPROt'l;D :~5 TC! 1"012.tii: 13y:,_.~~. _ Bob dacl:s , t:~neraf Counsel Trx:ts Dcpartntct:tofTransportation ~T'arn . - son, i~nc:ral Counsel _ al T~xa,s Regional .',~Sab=:!it~..1u.hari(. Date: ~~L n:tt~_ z~ d7 Y ! , ~ 1 ' ~ 20~o Annual QBE Loaf (FHWA) - ]'7 4 Th4 si~toties below confitTn that they stave the authorsty to execute this W1UL' and i~i-zd th~i.t ptv~-ipks. TF?CA5 Di:PARFMEI~I' OFTitr~'5POItTA'i'IO~t sy: `~''7. 1..7 Micttaei W. Hehrens, P.E. Executive DueCtor Dale: ~ / ~ - ° ~ C~N'TR~I. TEX,4S REGIONAi. ~40}3ll.1'iY r1i.Ti'NORiTY $y: ~k.r~~ Mike Heiligenstein Executive Director Hate: ~~/ fD~ `, ~ r za~a Annual DSE Goal (FHWA) - ] 8 a4ttachrr~ent ~ Public Consultati®n Meeting invitees The fallowing minority, women's and general contractor groups, tommunity organizations and other official and organization which were invited to attend the Public Consultation Meeting that took place on August ~7, zoog. Abilene 13iack Chamber of Commerce Acres Home Center for Business and Economic Development African American Chamber of Commerce of San Antonio African American News & Issues African Chamber of Commerce, D]FW African-American Chamber of Commerce AGC of Texas American {ndian Chamber of Commerce of Texas Beaumont Chamber of Commerce Bee County Area Hispanic Chamber of Commerce Bridging the Gap Bryan-College Station Chamber of Commerce Business Assistance Center-lnnercity Community Dev Center Camara De Camercio Hispana De Amarillo (Cacho) Capital City African American Chamber of Commerce Childress Chamber of Commerce Construction Information Network (CIN) Corpus Christi Bay Area Minority Business Opportunity Center Corpus Christi Hispanic Chamber of Commerce Corpus Christi Minority Business Development Center Dallas Black Chamber of Commerce Dallas Black Contractors Association Da[lasf 1=t. Worth -MBDC pallas]Ft. Warth]Arlingtan] MBDC Di'1N Native American Chamber of Commerce Eagle Pass Hispanic Chamber of Commerce East Texas Council on African-American Affairs El Mensajero, Inc. EI Paso Black Chamber of Commerce EI Paso Hispanic Chamber of Commerce El Paso MBDC Irl Pasa Minority Business Development Center Fort Worth Hispanic Chamber of Commerce Fort Worth Metropolitan Black Chamber of Commerce Greater Austin Hispanic Chamber of Commerce Greater Dallas Asian American Chamber of Commerce zortc~ Annual DBE Gaal (FHlNA) - 1 ~? Greater Dallas Hispanic Chamber of Commerce Greater Kiiieen Chamber of Commerce Greater Marshap Chamber of Commerce Greater Orange Area Chamber of Commerce Greater San Antonia Chamber of Commerce Greater Waco Chamber of Commerce Hispanic Chamber of Grea#er Baytown Hispanic Contractors Association of Dallas~F't Worth Houston Citizens Chamber of Commerce Houston Hispanic Chamber of Commerce Houston MBDC ~asper~i-ake Sam Rayburn Area Chamber of Commerce Kilgore Chamber of Commerce Lamar County Chamberof Commerce Laredo Chamber of Commerce Longview Metro Black. Chamber of Commerce Lubbock Black Chamber of Entrepreneurs, lnc. i_ubback Hispanic Chamber of Commerce LufkinJAngelina County Chamber of Commerce McAllen Chamber of Commerce McAllen Hispanic Chamber of Commerce Mexican American Network of Odessa, inc. (MANO} Midland Biack Chamber of Entrepreneurs, inc, Midland Hispanic Chamber of Commerce NAACP (Austin Office} NAACP (San Antonio Office} National Association for the Advancement of Colored People National Association of African American Chamber of Carnmerce National Association of Women in Construction Pampa Chamber of Commerce Pharr Chamber of Commerce Professional Women's Association Rio Grande City Chamber of Cam~erce Round Rock Chamber of Commerce San Angelo Chamber of Commerce San Antonio Hispanic Chamber of Commerce San Antonio MBDC San Antonio Women's Chamber of Commerce San Marcos Hispanic Chamber of Commerce San Saba County Chamber of Commerce Seguin-Guadalupe County Hispanic Chamber of Commerce Seminole Area Chamber of Commerce Smithville Chamber of Commerce South Texas MBpC ,~ ~ ~ o ' ~o~n Annual DBE Goal (FHWA} - 2(l Texarkana Chamber of Commerce Texas Asian Chamber of Commerce Texas Assaciation of African-American Chamber of Commerce Texas Association of Mexican-American Cha~r~ber of Commerce Texas State Canference of NAACP "texas Tech University Small Business Development Center Texas Workforce Center of El Paso Tuiia Chamber of Commerce Tyler Area Chamber of Commerce Tyler Metropolitan Chamber of Commerce U. 5. Dept of Commerce Minority Business Dev Agency U. 5. Pan Asian American Chamber of Commerce-Southwest U. 5.5maii Business Administratian Victoria Hispanic Chamber of Commerce Women's Business Council -Southwest Women's Chamber of Commerce of Texas Women's )enterprise Yoakum Chamber of Commerce r i ~ t ~ ~ ~ ~ R zo7o Annual DBE Goal {C=HWA} - r i ' Attachment ~'ubliic ~.~r~trnent Notifications The following is a list of the general circulation and minority-focused media that are contacted to post a pul3lit notice for the examination of the zoto DB1= Goal Methodology. Abilene reporter News Austin American Statesman Amarillo Globe News Beaumont Enterprise Brawnwaod Bulletin Corpus Christi Caller Times Childress Index Dallas Morning News EI Pasa Times Fart Worth Star Telegram Houston Chronicle Laredo Morning News Longview News Journal Lubbock Avalanche Journal McAllen Monitor San Antar~io Express News African American News & Issues La Prensa ATTACHMENT? . ~,~~~CH~~~~ ~ Control Project Highway County DISADVAIV'i'AGED BLISl3~lE5S EAtTERPRI~ES REQf7IREMEIV'R'S The fallowing goal far disadvantaged business enterprises is established: DBE 8.0°/a Certification of DBE Goa! Attainment By signing the proposal, the Bidder certifies that the above DBE goal will be met by obtaining comwitments egaal to ar exceeding the DBE percentage or that the Bidder will provide a good faith effort to substantiate the attempt to meet the goal. ti'ailure to provide commitments to meet the s#ated goal or provide a satisfactory goad faith efTort will be considered a breach of the requirements of the proposal. As a result, the bid prapogal guaranty of the bidder will became property of the Department and the Bidder will be excluded for re- bidding on the project when it is re-advertised, ATTACHMENT- 8 ' ®e ~ ~ a~ ®~ q ~ 6 ~ 9 ~ ~ ~ r® ,~ ~ !f` 6~ ® Y9 ~ ~ (Re~r3f2006) r:n: (GSC}-EPC} napgrfinen! o! Tmnspartallon ~ Page 1 of 1 CSJ. Project Number: Highway: County: To: (Area/Project Engineer), We have received the attached request for the use of joint check arrangements from our DSE Subcontractor .This arrangement is at the DBE Subcontractor and Supplier's request and the parties involved agree that the DBE Subcontractor will place all orders to pertinent Suppliers. We further agree that the DBE Subcontractor retains all final decision-making responsibilities as stated in the Federal DBE FZegulations 26.5b (c)('[). We, as the Contractor far the project, agree to issue joint checks for payment of sums due, on the above referenced project, to pertinent Suppliers of the DBE Subcontractor. We further agree to notify you when the joint checks will be used and will provide the joint check agreement upon your request. Contractor: Signature: Print Name: Title: Date: Reserved for TxDOT Use Onl TxDOT District Apprnval: ^ Check far Approval ^ Check for Denial 5i nature: Reason for Denial: Print Narne: Title: Date: District Procedures: T. Provide a copy of the approval or denial for the contractor. 2. Maintain a copy for the files. 3. Conduct reviews of the Contractor and DBE procedures on the use of joint checks. ATTACHMENT 9 '~ ATTP,CHf1~~NT 9 TEXAS UNIFIED CERTIFICATION PROGRAM STANDARD OPERATING~PROCEDURE ~. IN7CROlD1UCTy®N A Disadvantaged Business Enterprise (DBE) Unified Certification Program {UCP} has been established in the State of Texas in accordance with Title 49 Part 26 of the Cade of Federal Regulations (49 CFR Part 26}, Pursuant to a Memorandum of Agreement (MOA) signed by all recipients required to participate in the TUCP, the Texas Department of Transportation {TXDOT}, City of Houston, City of Austin, Corpus Christi Regional Transportation Authority (CCRTA),-North Central Texas Regional Certification Agency (NCTRCA}, and South Central Texas Regional Certification Agency (SCTRCA} as Certifying Partners for the TUCP, The cost of creating and establishing the TUCP web site and the electronic DBE Directory will be the responsibility of TxDOT, The TUCP reserves the right to develop a methodology to ascertain rriaintenance and operational costs. Any changes to the web site or Directory that results in costs to the Certifying and Non-Certifying Partners will be reviewed and approved by the TUCP recipients before the changes are implemented. Eaoh of the Certifying Partners is required. to administer a DBE certification program in accordance with 49 CFR Parts 26 and 23. As part of the TUCP, Certifying Partners will make certification decisions on behalf of all USDOT recipients, sub recipients and grantees in Texas with respect to participation in the USDOT DBE Program. Certification decisions by the TUCP shall be binding on all USDOT recipients, sub recipients and grantees within Texas. 1. The following actions have been taken by the TUCP Partners: All TUCP Partners electronically subnutted the current DBE firms to the DBE Database Manager for inclusion in the TUCP DBE Directory. 2. Each DBE firm was confirmed by each TUCP Partner, that the DBE firm was certified under the provisions of 49 CFR Parts 26 and 23. 3. 'The TUCP Partners met to review each of the DBE firms, and concluded which TUCP Partner would have custody of the certification record, A thorough certification process ensures that the DBE program benefits only bona fide disadvantaged businesses. In order to ensure consistent application and interpretation of the regulatory requirements for DBE certificakion and consistent certification determinations, a Standard Operating Procedure (SOP} will be used by all Certifying Partners. The Standard Operating Procedure sets forth the process to be utilized by the Certifying Partners when making determinations of DBE certification eligibility. The procedures outlined herein are consistent with the U.S. Department of Transportation regulations codified at 49 CFR Part 26. IIf o DE1F'I1~ITIDNS Burden of Proof Measure ofpersuasion that is required to convince someone that an alleged fact is true. DSE Certification A finding, after a certification eligibility review by a Certifying TUCP Partner that a business meets the certification eligibility requirements and is a bona fide Disadvantaged Business Enterprise in accordance with 49 CFR Parts 26 and 23. Certification Interview Face-to-face meeting between the applicant firm's qualifying owner(s) for DBE certification and the Certifying Partner Cerkifyins TUCP Partner A Texas State recipient of USDOT funds with a current DBE Program Plan approved by an appropriate USDOT oversight modal agency. A Certifying TUCP Partner can issue or revoke DBE certifications. This includes those entities, North Central Texas Regional Certification Agency and South Central Texas Regional Certifrcation Agency, who are not recipients, but were formed as domestic non-profit organizations for the purposes of performing certifications on. behalf of recipients. Decerkificatian The removal of certification based on a determination that a cwrently certified DBE no Ianger rr~eets the eligibility criteria and is given due process under 49 Cl~R Part 26. Decision Memorandum Written document prepared by Certifying TUCP Partner detailing certification determination rendered. Denial of Certification A finding that a business is not a bona fide Disadvantaged Business Enterprise. A business that has been denied DBE certification or declared ineligible cannot again reapply for DBE certification for one year from the date of denial. Executive Committee A group consisting of representatives from each of the TUCP Certifying Partner agencies, who shall be designated by the signatories to the Memorandur of Agreement for the Unified Certification Program. Grantee Any public entity that has received USDOT assistance. Nom-Certifying TUCP Parkner A State of Texas recipient, sub-recipient, or grantee with a current DBE Program Plan approved by an appropriate USDOT oversight modal agency. ANan-Certifying TUCP partner can neither issue nor revoke DBE certification. 2 TUCP Certifying Partner A. State of Texas federal aid recipient with a current DBE Program Plan approved by an appropriate USDOT oversight modal agency. This includes those entities, North Central Texas Regional Certification Agency and South Central Texas Regional Certifacatian Agency, who are not recipents, but were formed as domestic non-profit organizations for the purposes of performing certifica#ians on behalf of recipients. A Certifying Partner can issue or revoke DBE certification. The TUCP Certifying Partners are the Texas Department of Transportation {TXDOT}, Corpus Christi Regional Transportation Authority (CCRTA}, Narth Central Texas Regional Certification Agency (NCTRCA), South Central Texas Regional Certification Agency (SCTRCA), City of Austin, and the City of Houston. TUCP Partner All Texas State federal-aid recipients, bath Certifying and Non-Certifying, participating in the TUCP. Preponderance of Evfdence A standard of proof which is met when the evidence on a fact indicates that it is "more likely than not" true. Recipient Any public entity, which receives direct USDOT financial assistance. Sub recipient Any public entity that receives USDOT financial assistance through another recipient. Withdrawal of Application An. applicant's written request to the Certifying TUCP Partner to cease the certification ravie~r process. An applicant that has withdrawn its application cannot again reapply for DBE certification for twelve (12) months from the date of the withdrawal. III. CERTIFICATION PROCEDURES A. Application finr DBE Certification 1. All applicants requesting initial DBE certification must complete and submit a complete certification application package to one of the TUCP Certifying Fartriers. The TUCP will accept a copy of a firm's application package that was submitted to the SBA and a copy of their certification letter. SBA firms must undergo a site visit. 2. A complete package consists of the following: a) USDOT Uniform Certification Application and Affidavit 3 b) Personal Financial 5tatemcnt for each qualifying socially and economically disadvantaged owner c) Required basic and support docurnen#ation as cietemnined by business structure and in accordance with 49 CFR Parts 26 and 23. B, I~ttake 1. Immediately upon receipt of the application package it is reviewed for completeness of form. Specifically, the Affidavit of Certification and Personal Financial Statement are reviewed for original signatures and notarization, and to determine whether the basic required supporting documents have been submitted. 2. The application is reviewed to ascertain the firm's line of work and services provided. Type of business service is necessary in detenriir~ing whether the Certifying Partner in receipt of the application will process the application or transfer it to another Certifying Partner. 3. Only firms organized for profit are eligible for DBE certification. C. Desk Audit 1. The processing staff will organize and assemble the applicant information in a business file. The processing staff must be mindful that all applications are to be processed within 40 days of receipt of a complete application. 2. The processing staff will thoroughly review the application package to deternine whether all required supporting documentation has been submitted, and to determine if additional information will be requested. Care should be taken to ensure that any requested documentatianlinforma#ion is actually pertinent to the certification review. 3, If additional information is required, the processing staff will prepare a letter to the applicant firm requesting additional information. The letter will include a due date for submission of the additional information and advise the applicant that failure to respond will administratively close the application. In establishing a due date, processing staff must allow sufficient time thirty (30) days for the applicant to provide the requested information, 4. The processing staff wiI1 monitor the timely receipt of the requested information. U'pan receipt ofthe additional information, the processing staff will review it and make a deternunation as to the completeness of the certification file. Processing staff are required to obtain information from the Texas State Camptrolier/Texas Secretary of State for "standing" of the applicant business and all known affiliates. 5. Familial- marital relationships (see page 9). 4 ~o Threshold I~egaaire~nents 1. The processing staff will make a determination on each of the threshold requirements. a) Size standard - in making a determination ofsize standard, processing staff must reference and adhere to §26.65 and 23.33 of the regulations. b} Social disadvantage - In making a determination of social disadvantage, processing -staff must reference and adhere toy § 26.63 and §26.67 of the regulations. c} Economic disadvantage - in making a determination of economic disadvantage processing staff must reference and adhere to §26.67 and 23.35 of the regulations. d) Cttizenship -each individual qualifying the firm for DBE certification must demonstrate that he/she is a citizen of the United States or a lawfully admitted permanent resident. Each individual must submit acceptable documentation as proof of citizenship or permanent resident status. e} irrevocable separation of property: When marital assets 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. A copy of the document legally transferring and renouncing the other spouse's rights must have been filed in the proper court. The document must clearly show receipt by the court. 2. FAILURE TO MEET REQUIREMENT - If the applicant firm or its qualifying owners fail to meet any one of the threshold requirements far DBE certification, the firm is to be deemed ineligible for DBE certification. The firm may appeal the denial determination to the U.S. Department of Transportation in accordance with the procedures set Earth in §26.89. 3. REVIE'W' OF COMPLETED FILES - If the firm meets the threshold requirements, the processing staff will, upon a thorough and careful review of the complete file, prepare a list of firnn specific questions to be answered by the qualifying owners of the firm. These questions should be in addition to the standard questions asked of every firm and should address the particulars and unique facts of the applicant firm and its owners. a) In preparing firm specific questions, processing staff should be sufficiently knowledgeable of the business area in which the firm is 5 0 seeking certification, anticipating issues, which will require class examination. The processing staff should have knowledge of the capitalization requirements, licensing, technical expertise, staffing and industry practices. In the event that processing staff is unfamiliar with the requirements for the applicant business, technical assistance should be Obtained from teehnical'personnel within the agency. b} Once the applicant f le is complete and the questions have been prepared, processing staff must schedule aface-to-face certification on- sitereview meeting with the qualifying owners at a time convenient far all participants. E. On-Sfte Review 1. The purpose of the an-site review is to verify the firm's location, personnel and operations; to substantiate information documentation contained in the applicant file and to review business and financial records. The on-site review is the second phase of the certification review process and will also be conducted on certified firms every three years. An an-site review of the applicant firm and an interview of the socially and economically disadvantaged principals of the firm must be made in accordance with §26.83{c) (1) of the regulations. 2. The following information, ff a lfcable, should be received and reviewed no later than the on-site review: a) Cash Recefpts and Disbursements (i) Check fox entries in the cash receipts journal, which disclose initial capital contributions. (ii} Verify operational expenditures in the cash disbursements journal. Note questionable/exceptional/unusual entries and the frequency or consistency of such expenditures. (iii}Note payments to and from shareholders, directors, officers and key employees in the cash disbursements journal. (iv)Note payments to similar businesses for possible broker activity or evidence of conduit activity. {v) Cross reference cash disbursements with cancelled checks. {b) Bank Statements and Cancelled~Checks {i) Verify initial capitalization of firm with the first bank statement, if available. (ii) Verify and document signature authority and consistency in which DBE owner v, non-DBE Owner(s)loffiees sign checks, (iii)Verify payments to shareholders, key employees and CDIISUItants. {iv)Pay particular attention to the "memo" section of checks. 6 ~' a ,, (v) Determine is there are any additional checking accounts not disclosed prior to the visit. If so, note the authorized signatories. (vi)Cross reference payments to and from clients, suppliers, consultants, etc. (c) Payroll (i) Determine who is on the firm's payroll. (ii} Determine if the owner is receiving compensation in accordance with his/her ownership interest. (iii}Determine who receives bonus payments and amounts. (iv)Cariipare W-2's and 1099's to payroll register, to extent possible, for key employees. (v} pay attention to any "memo" notations on any payroll checks. (d} Invoices and Receipts {i) Check telephone bills to determine if they are addressed to the DBE firm. {ii) Review invoices to substantiate method and source of payment. (iii)Check invoices for suggestion of brokering activity or reliance on non-DBE firms. (iv}Examine invoices for resolution of regular dealer issues (freight charges}. {e} Contract Files (i) Determine who executes con#racts on behalf of the frm. (ii) Verify the services provided by the applicant firm and the terms and conditions of the provision of their services, (iii)Verify consistency in which firm does business with a particular firm and whether any issues of dependency. {fj haventory and Equipment (i} Identify nature and use of equipment possessed by firm. (ii) Verify ownership of equipment with invoices. (iii)If equipment is leased, review equipment lease agreements. (iv)Identify inventory maintained by firm. (v} Determine whether lack of inventory suggests broker ar conduit activity. (vi)If regular dealer, verify inventory, warehouse facility, transportation equipment, eta. • (vii) Determine if firm's name on vehicles {izucks). (g) Bonding and Ltsuraace (i} Determine who is guaranteeing/financingbouding. (ii) Is bond commensurate with size of firm? (iii)Are insurance documents in the name ofthe firm? {iv}Verify tykes of insurance maintained by firm. (v) Does firm carry Key Man Insurance (life insurance on ~Cey person in business, should be owner-business is beneficiary}? If so, for whorri? (h} Corporate Kit ar Business Organization Documents 7 (i) Crass reference documents in corporate kit with original submission. {ii) Review all minutes and entries for voting, control, attendance, etc. (i) Corporate Kit ar Business Organization Documents {i) Review stock transfer ledger. (ii} Review cancelled/voided stock certificates and note reasons for cancellations. {iii)Review non-issued stock certificates to determine if there is numerical continuity. (iv}Verify corporate seal. (v} Review by-laws for revisions since original submission of documents {j} Employment Agreements (i) Determine the existence of any Employment Agreements far owner(s) nr key personnel. {ii) Review terms of Employment Agreements far possible conflict with qualifying owner's ability to control operations of firm. {k) Physical Characteristics of OffPiceBufldingLocotion (i) Determine if the firm has identifying signs outside or inside of the buildingloffice. {ii} Deterrrxine if DBE owner has own office. {iii}Request a tour of facilities and observe equipment an premises. (iv}Ask questions regarding operation of equipment. (v) Determine if office space shared with other companies, and if so, the nature of the business of the other companies. {vi)Detennine if equipment, supplies; etc. is shared with other companies. (vii} If shared facilities, equipment, verify arrangement for sharing. {viii} Determine if owners} are operating other related or unrelated businesses from the location. If so, identify the business and its owners, (1) Familial-martial relationships- Familial-martial relationships between owners and employees that is pertinent to ownership and control of the company. 3. information obtained during the on-site review must be compiled in a separate comprehensive written report. The on-site review report is made a part afthe certification file and incorporated accordingly. 4. Depending upon the location of the lirm, a Certifying Partner may request another Certifying Partner to conduct the on-site review, in such instances, a written request must be made to the Certifying Partner conducting the review with issues of concern identified. The Certifying Partner conducting the on- sitereview will be responsible for preparing the on-site review report. 8 + I 1 4 1 q S. An on-site visit to the jab-site must b~ conducted if at the time of the on-site, the applicant firm is working. 6. Tn lieu ofconducting an on-site review for a firm outside of Texas, a Certifying Partner may utilize an on-site review report from the potential DBE's home state DQT that certified the firm in accordance with 49 CFR Pacts 26 and 23. 7. An applicant's failure to permit an on-site review shall be gxaunds for denial afDBE certification far failure.to.caoperate. The fine will.be denied_ certification and cannot reapply for 12 months. The firrn may appeal the denial determination to U.S. DOT in accordance with the procedures set forth in §26.89. F. Certification Determination and Recommendation 1. DECISION MEMORANDUM -The certification recommendation is the final product of all information, which has been reviewed, and is an evaluation of the firm's corxipliance with the certification eligibility standards set forth in the regulations. The written reconunendation must be sufficiently comprehensive to persuade an objective party of the merits of the recommendation. 2. MANAGEMENT REVIEW -The certification reeaxiarxiendation must be submitted to the supervisor responsible for certification review. The complete file must accompany the submission of the certification recommendation. The supervisor responsible far the certification review must provide written concurrence with the recommendation for certification or denial of certification before a letter can be forwarded to the.firrn's owners. G. DBE Certification and Annual Certification Renewal 1. WRITTEN NOTIFICATION - A firm will be notified in writing by the TUCP Certifying Partner that it has been granted DBE certification. 2. LENGTH OF CERTIFICATION - Once a firm is certified as a DBE by the TUCP, it shall remain certified, unless and until its certification has been removed in accordance with procedures set forth in 49 CFR §26.87. 3. CHANGE OF CIRCUMSTANCE - A certified DBE firm has an affirmative responsibility to notify the TUCP Certifying Partner in writing, of any change in circumstances affecting size, disadvantaged status, ownership, or control requirements of the regulation, or any material change in the information provided in its application far DBE certification. Such notice must be within thirty (30) days of the change-taking place. 4. NO CHANGE AFFIDAVIT - A certified DBE firm must submit annually, on the anniversary of DBE certification, a No Change Affidavit. A 9 . p Igo Change Affidavit is a sworn affidavit affirming that there have been no changes in the firm's circumstances affecting its size, disadvantaged status, ownership orthe control requirements of the regulation, or any material change in the information provided in its application for DBE certification, including the support documentation. a) Each firm will be notified by the TUCF Certifying Partner at least 30 days in advance of its anniversary date, of the annual submission requirement and will be provided with the necessary affidavits to complete and return. b} A firm failing to comply with the annual submission requirement will be notified in writing 30 days from the date that the submission was due, of the TUCP's intent to decertify the DBE in accordance with §26.87 of the regulation. c} A f rm failing to comply with the annual submission requirement will be decertified under the procedures of §26.87. II. Initial Denial of DBE Certification 1. A firm will be notified in writing by the Certifying Partner that it has been denied DBE certification by the TUCP. 2. The firm will be provided with a written explanation of the reasons far denial, specifically referencing the evidence in the record that supports each reason for the denial. 3. All documents and information used to render a deternunatian of denial will be made available for inspection by the applicant, upon written request to the Certifying Partner. 4. A firm that is denied DBE certification may not again apply for certification with the TUCP for a period of one year. 5. A firm denied DBE certification may appeal the denial of DBE certification to the USDOT in accordance with §26.89 of the regulation. I. Removal of DBE Eligibility (Decertification) 1. The TUCP Certifying Partners will fallow procedures consistent with §26.87 when removing DBE certification eligibility. 2. A DBE firm whose eligibility has been removed decertified) for any of the fallowing reasons will be afforded an Appeal Process as stated in Section J(2): ~0 ~' . a} The business has changed to the extent that it is no longer owned or controlled by socially and economically disadvantaged individual(s). b} The DBE firm is no longer an ongoing business entity. c) The socially and economically disadvantaged owners falsified a sworn statement, This action may also result in more punitive action such as debarment. d) The DSE fails to notify the TUCP Certifying Partner, within 30 days, of changes in ownership, control, independence or s~atus~ as an ongoing concern. e} A detern~ination by fhe TUCP Certifying Partner that the firm no longer meets certification eligibility standards. f} The DBE exhibits a pattern of conduct indicating its involvement in attempts to evade or subvert the intent or requirement of the regulations. This action may also result in mare punitive action such as debarment. 3. Decertified firms shall be removed from the TUCP directory.. 4. A decertified firm may nat again apply for certification with the TUCP for a period of one year. .1. Appeal Process 1. Initial 13enials a} a firm denied DBE certification may appeal the denial of DBE certification to the United States Department of Transportation (USDOT) in accordance with §26.89 of the regulation. Such appeal must be filed wi#hin 90 days of the date of the determination letter. b) Pending a determination by USDOT, the decision rendered bX the Certifying Partner remains in effect far the TUCP. Upon notification by USDOT, the TUCP Certifying Partner will forward a copy of the complete administrative record for review. c) Ail appeal decisions rendered by USDOT are administratively final and are not subject to petitions for reconsidera#ion. d) A firm that is denied DBE certification may not again apply for certification with the TUCP for a period of ono year. e) The Database Manager will receive written notification of the certification determination rendered by the TUCP Certifying Partner. 11 ~o Removal of CertifiCataon a} Any firm that was certified under 49 CFR Part 25 and has had their certification removed may file a written rebuttal or appear in person at an informal hearing. b) All requests for an informal hearing must be filed with the TUCP Certifying Partner responsible for the removal of DBE certification. The firm will have the opportunity to present information in person or in writing. . c) The TUCP Certifying Partner must maintain a complete record of the hearing, by a means acceptable under State law for the retention of a verbatim record of an Administrative Hearing. d) Separations of Functions: The TUCP Certifying Partner must ensure that the decision in a proceeding to remove a firm's eligibility (decertification) is made by an office and personnel that did not take part in actions leading to ar 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. e} Any firm may appeal directly to the United States Department of Transportation (USDOT}. Such appeal must be filed within 9Q days of the date of the denial letter from the Certifying Partner. t} Pending a determination by the USDOT, the decision rendered by the TUCP Certifying Partner remains in effect for the TUCP. g} Upon notification by USDOT, the TUCP Certifying Partner will forward a copy of the complete adrr3inistrative record for review.. USDOT will make a determination based solely on the administrative record. h} USDOT will provide written native of its decision to the TUCP and the appellant. i} It is the policy of USDOT to make its determination within 180 days of receiving the complete administrative record. If a determination is not made within this period, USDOT will provide written notice to-the parties explaining the reason for the delay and a date by which the appeal decision will be made. j) All appeal decisions rendered by the USDOT are administratively final and are not subject to petitions for reconsideration. 12 [ ' K. Third Party Challenge 1. Tn compliance with Section 26.87 the TUCP Certifying Partners shall accept written complaints from any person, including Nan-Certifying Partners, USDOT, and or a TUCP Certifying Partner alleging that a currently certified DBE firm is ineligible. 2. The complainant must state the specific reasons for the challenge and submit documentation in support of the complaint, The complainant's identity shall be protected as provided for in §26.109 (b). 3. The challenged firm shall be notified, in writing, by the original TUCP Certifying Partner, of the challenge, the basis for the challenge and the relevant regulations. 4. The TUCP Certifying Partner responsible for the original certification shall thoroughly investigate the complaint within a reasonable time not to exceed 60 days. 5. The TUCP Certifying Partner shall notify the challenged firm in writing via certified mail of the preliminary findings of fihe complaint. fir. If reasonable cause to remove DBE certifcation eligibility is found, the original Certifying Partner will notify the complainant and DBE firm of the specific grounds far removal and will inform the DBE firm of its right to an informal hearing to address the preliminary findings. 7. The challenged firm naay request reconsideration in writing, of the intent to remove certification eligibility, within 15 days of the date of the notice. 8. The request for an informal hearing must be made to the investigating TUCP Certifying Partner and must indicate whether the firm wishes to file a written appeal or appear in person for a hearing. 9. USDOT may also notify the TUCP of reasonable cause to find a certified DBE firm to be ineligible. In such cases, the. TUCP shall without delay begin a proceeding to determine whether the firm's eligibility should be removed, as provided in Section 26,87.. ZrT.AGENCY COMPLL4NCE if any TUCP Certifying Partner has reason to believe that another TUCP Certifying Partner is not in compliance with the requirements of 49 CFR 26, Subpart E, they should bring the matter to the attention of the TUCP Executive Committee. The TUCP Executive Committee will be responsible for reviewing any compliance matters that pertain to the requirements of 49 CFR Part 26 Subpart E. If the TUCP Certifying Partner raising a compliance matter is not satisfied with the action tstlCen by the TUCP Executive 'I 3 '~ ; ~~ Committee to resolve the matter, They may make a written complaint to the appropriate U.S. DOT ir~terrnodal Agency, e.g., FTA, FAA, FHWA etc. '~ 4 ATTACHMENT 10 N ~~ a r i ~ ~ ~ ~ ~ f ~ aTr~,c~~~~T ~o TEXAS r~EnwRAN~u~ of AGREEn~ENT f®r a ~fSAD~/ANTAGLD B~USIIVESS t~N1F1ED CERTIFICATION PRQGRAN! U.S. DEPARTMENT OF TRANSPORTATION PARTNERS Texas Departmen# of Transportafivn City of Houston Ci#y of Austin Corpus Chris#i Regional Transports#ion Agency North Central Texas Regional Certificafion Agency South Cen#ral Texas Regional Certiflcafion Agency • ~ ~ _ ` 5 ~ ~ ,c ' ~ f Texas Unified Certifi~a#ior~ Program Memo~°ao~da~m ¢~f Agireernen# and S#andard ®pera#ing Pr®~edures Amendmen# One From: R.D. Brown, Interim Director, Certification and Reporting Office of Civil Rights, TxDOT Effective Date: October 14, 2008 Purpose The purpose is to revise Section I! and Section N! of the Texas Unified Certification Program Standard Operating Procedures Changes: Under Section il. Definitions -Withdrawal of Application - An applicant's written request to the Certifying TUCP Partner to cease the certification review process. An applicant that has withdrawn its application cannot again reapply for DBE certification for twelve (12) months from the date of the withdrawal chanced to: An applicant's written request to the Certifying TUCP Partner to cease the certification review process. A new applicant that has withdrawn its application, prior submitting a complete DBE application (Desk Audit Checklist) and prior to an On-site Eligibility Review, cannot again reapply far DBE certification far six {6} months from the date of the withdrawal, Any application withdrawn after an On-site Eligibility Review is conducted must wait for a period of one year (12 months) #rom the date of withdrawal, to reapply. Under Section l11. H. 4. - A firm that is denied DBE certification may not again apply for certification with the TUCP for a period of one year changed to: A firm decertified for cause may not apply again for DBE certification with the TUCP for a period of one year {12 months}. A firm that is decertified for not submitting an Annual Affidavit (failure to cooperate clause} may reapply for DBE certification after a six (6) month waiting period from the date of decertification. SIGNATURES AND ACKNQWLEDGEMENT OF CERTIFYING ENTITIES QN FALLOWING PAGE y S ~ ~ e ' ~ r .. r =' Texas Department of Transportation Centro! Texas`I~egional Certification South Central Texas Regional Certification City of Austin ~.. ~;' Corpus C risti f Transportation Authority t -. ~. ~~ __ -_ _- City of Houston T ~_ L~I ~~Iy?~i E, .__.__,_'-~~ - ~- f - Date ~~~~~ Date ~ ~, Date ~Isicr Date ~• .. - i Date T Date ., UNlF1ED CERTIFICATION PROGRAM .. .....................................................................1 Introduction ...............................................................................................................1 Organization .............................................................................................................1 Purpose ....................................................................................................................1 Definitions .................................................................................................................2 TUCP PROGRAM DESCRIPTION ..............................................................................3 Partners' Roles, Responsibilities ~ Obligations ........................................................3 D8E Directory Management .....................................................................................3 DBE Directory & Internet Access ..............................................................................4 TUCP PROGRAM COSTS AND FUNDING .................................................................5 Training and Resources ............................................................................................5 CERTIFICATION PROCEDURES AND PROCESS ........ ............................................5 Geographic & industry Considerations .....................,..................................,.....,......5 Quality Assurance (New Certifications) ...................................................................6 Annual Review Process ..........:.................................................................................6 Third~Parky Challenges .............................................................................................6 Appeals Process and Procedures .............................................................................7 IMPLEMENTAT}ON SGHEDULE .................................................................................7 Staff Training ...........................................................................................................7 Unified DBE Directory ........................................................................................'.......8 Transition of Currently Certified DBEs ......................................................................8 GRANGES TD THE MC)A ............................................................................................8 SUMMARY ...................................................................................................................8 APPENDIX A ..............................................................................................................10 w s { .S 7°i4 7`~ ~F T°L~C~S 1~1E1V1®f~A11IDU14~ OFAGf~~'FJVTicIVT" UNIFIED CERTIFICATION PROGRAM This Memorandum of Agreement (MOA) establishes a Disadvantaged Business Enterprise {DBE} Unified Certification Program {UCP} in the State of Texas in accordance with Title 49 Pars 2C and 23 of the Code of Federal Regulations (49 CFR Parts 26 and 23}. The TUCP Certifying Partners are the Texas Department of Transportation-~(TxDO=F}~~-~-C'tty~of Houston;--City--of--At~stin,-Carpal--CM~isti-~Regionat Transportation Authority (CCRTA), North Central Texas Regional Certification Agency (NCTRCA}, and South Central Texas Regional Certification Agency (SGTRCA}. Introduction Each Certifying Partner in Texas is required to administer a DBE Certi#ication Program in accordance with 49 CFR Par# 26, Part 28.81 of this regulation require each state to develop a UCP by March 4, 2082. Each TUCP Certifying Partner agrees to commit sufficient resources and expertise to carry out the requirements of 49 CFR Part 26. Organization The TUCP shat! establish an Executive Committee consisting of representatives from each of the Certifying Partner agencies, who shall be designated by the signatories to this MC7A Agreement. The Executive committee will also be responsible far resolving any conflicts between certification actions of its members, The Standard Operating Procedures of the TUCP .Section Ill-Agency Compliance, outlines the process for dealing with matters regarding the compliance with certification requirements. Nothing in this agreement should be construed to contravene the sovereignty of each participant. The contact person for the TUCP is the Texas Department of Transportation, Business Opportunity Program Section. A Certifying TUCP Partner may terminate its responsibilities under this Agreement and become aNon-Certifying TUCP Partner upon a six month notice to all TUCP Partners. Purpose The objec#ives of the Texas UCP are as follows. To follow the certification procedures and standards and the non-discrimination requirements of 49 CFR Parts 26 and 23. To cooperate fully with all oversight, review and monitoring activities of the United States Department of Transportation (USDOT) and its operating administrations, -~- i r ~ r ~ Ta implement USDOT directives and guidance an DBE certification matters. To make all certification and decerti~catian decisions on behalf of all TUCP Partners with respect to participation in the USDOT DBE Program. Certification decisions by the TUCP shall be binding on all TUCP Partners. Certification decisions must be made final before the due date far bids or offers an a contract on which a firm seeks to participate as a DBE. Tv provide a single DBE certification that will be honored by all TUCP Partners. __ ~ To maintain a unified DBE directory. containing, at least the_.f~llowing information for each firm fisted: address, phone number and approved NAICS codes: The TUCP shall -make the directory available to the public electronically on the Internet as weA as in print. TxDOT shall update the electronic version of the directory by including additions, deletions and other changes upon notification by the DBE andlor Certifying Partner. ® The TUCP Partners will commit adequate resources and expertise to carry out this agreement. The partners will continue to individually bear the costs of training staff, certifying fans and sharing DBE files, i.e. postage and copying casts. Travel to and from meetings will be the responsibility ofi individual partners. The TUCP will be created and fully functional nv later than 1$ months from the date of approval by the Secretary of Transportation and in accordance with the Implementation Schedule as described herein. Definitions TUCP Certifying Partner A State of Texas recipient with a current DBE Program Plan approved by an appropriate USDOT oversight modal agency. This includes thane entities, North Central Texas Regional Certification Agency and South Central Texas Regional Certification Agency, who are not recipents, but were formed as domestic non-prof:rt organizations for the purposes of pertorming certi#ications on behalf of recipients. A certifying partner can issue or revoke DBE certification. TUCP Partner Ail Texas State recipients participating in this Memorandum of Agreement, both Certifying and Non-certifying Partners. Non-Certifying TUCP Partner A State of Texas recipient, sub-recipient or grantee with a current DBE Program Plan approved by an appropriate USDOT oversight modal agency. ANon-Certifying Partner can neither issue nor revoke DBE certification. -2- h 3 ~ ~ ~ 1 ~ I > b }~~'CipA@rFt Any public entity which receives direct USDOT financial assistance. Sub-recipient Any pubiic entity receiving USDOT financia[ assistance through another recipient. Gran tee Any public entity that has received USDOT assistance. TUCP PROGRAM DESCRIPTION Partners' Roles, Responsibilities & Obligations All TUCP Partners agree to maintain DBE certification applica#ion fifes, conduct site visits, make certi#ication decisions and handle appeals and complaints. The Certifying TUCP Partners agree to utilize the USDOT Uniform Certification Application and Affidavit. • Alf decisions related to eligibility and certifcatian must agree with 49 CFR Parts _ 26 and 23. • The TUCP Certifying Partners and Nan-Certifying Partners must have an approved DBE Program. Additionally, each Certifying Partner must have clearly defined and Written processes and procedures related to the administration of its DBE Program and certification decisions. • Each TUCP Certifying Partner must adhere to the processes and procedures as set forth in the Standard Operating Procedures. DBE Directory Management Upon approval of a firm for DBE certification by the UCP Certifying Partners, the originating Certifying Partner shall submit the firm's information for inclusion in the electronic database directly to the DBE Database Manager. This information shall include at a minimum: • Name, Street Address, P,O. Box, City, County, State, Telephone and Fax Number, E-rnai{ address and Federal Tax Identification NumberlSSN; • Name, Sex, Ethnicity, Race and Country of Origin of qualifying DBE OWner~5~; -3- ` ~ .~ ~ o ,a ® Type of work performed by the DBE using the North American industry Classification System (NAICS) adopted by the SBA on Qctober 1, 2aao, as amended; ® Date Business was Estabiished; • Name of TUCP Certifying- Partner; • Certification and Annual Update Affidavit Dates; -- The-TUCP Certifying Partners agree that a UCP Database Manager will be designated. The DBE Database Manager shall assume the following responsibilities: Input ali data and make any corrections, additions andlor deletions upon receipt of information from the Certifying TUCP Partners; ® Maintain and keep the electronic DBE database current; ® Make the electronic DBE database available to all TUCP Partners and other interested parties; ® Provide printed copies only of the iist of firms that are DBE certified upon request and at a charge to be established; (Third parties shouid oniy be provided with a list of DBE certified firms, They should not be provided with information that a firm has been denied certification,) • Maintain the TUCP Website. DBE Directory & Internet Access The DBE Directory will be located on the TUCP website. In accordance with 49 CFR Part 28.31 and 23.31(b), the DBE Directory will include the following minimum information for each firm: Name, .address and telephone number of firm; • Contact person • Types of work performed by the firm with appropriate six (3) digit NAICS code and description. The TUCP DBE Directory may contain additional information, including but not limited to the foliowing: , .q. ~i ~ { e I ® Geographic location of the Firm (i. e., county} • Website Address of the Firm ® Fax Number & E-Mail Address of the Firm ® Certifcation and Annual Update Affidavit Da#es TUCP PROGRAM COSTS AND FUNDING The cost of creating and establishing the TUCP website and the electronic DBE Directory will be the responsibility of the Texas Department of Transportation. Training and Resources The TUCP Cer#ifying Partners will conduct ongoing in-service training. The TUCP Certifying Partners will agree to rotate the duties of planning and conducting training sessions. CERTIFICATION PROCEDURES AND PROCESS In addition to the following procedures, the TUCP will follow all certification procedures and standards of 4J CFR Part 2B, and will implement USDOT directives and guidance concerning DBE certification matters. A Standard Operating Procedure (SOP) has been developed and will be utilized by all Certi#ying TUCP Partners. They may be modified as needed and agreed upon by the Certifying TUCP Partners and approved by U.S. DOT. e The TUCP will accept an application from the SBA, but will not automatically recognize the DBE certification of a firm certified by the Small Business Administration . (See attached 50P for process} . • The TUCP will utilize the USDOT approved Uniform Certification Application and other related certification documents to facilitate "one-stop shopping" far applicants. Geographic 8~ Industry Considerations Six agencies have agreed to perform the certification process for DBE program applicants within the State of Texas by geographical location. If a DBE applicant/firm works only in the highway construction industry, TxDOT agrees to process the -5- ~. application andlor have certification responsibi{ity for the DBE arm. Therefore, the certifying TUCP partner to whom application is made will .ascertain the geographical area of the applicant firm andlor its primary work type or industry, and take the appropriate action to ei#her process the application yr forward the application within three to five business days to the appropriate TUCP certifying partner. City of Houston: Geoggraphical: Counties of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller. Carpus Christi Regional Transportation. Authority: Geographical: Counties of Aransas, Bee, Galiad, Jim Wells, -Karnes, Kleberg, Live Oak, Nueces, Refugia, and San Patricio North Central Texas Regional Certification Agency: Geographical: Counties of Collin, Dalla~~ Denteri,~Eili"~"; ~~th; Hood; J~i~Joh~i~~~,-t~eufr~ti~r~i-~av~ar~a,..Pal~Pinto, Parker, Rockwall, Somervell, Tarrant, and Wise, South Centro[ Texas Regional Certification Agency: Geographical: Counties of Atascosa, Bandera, Bexar, Comal, i=riv, Guadalupe, Kendall, Kerr, McMullen, Medina, Uvalde, Wilson, Bastrop, Gaidwell, Hays, Travis, and Williamson. Texas Department of Transportation: Geographical: All other remaining counties in Texas. Quality Assurance New Certifications). The SUP ,has been created to ensure consistent application of UCP program requirements among the Certifying TUCP Partners. Uniform documents have been developed for use by the Certifying TUCP Partners sa that consistent information is obtained and used in certification determinations. At a minimum, there will be annual training of certification staff in order to maintain consistency in determinations. Annua! Review Process DBEs will update their cerkifica#ions annually using the TUCP Annual Update "No Change" Affidavit as required in the SDP. Failure to submit the required documentation may result in certification removal as outlined in 49 CI=R Part 26.87 and the SOP. The annual review will be conducted by the responsible certifying TUCP Partner. A DBE on-site review will be conducted by the TUCP Partner every three years in conjunction with the DBE firm's submittal of the Annual Update Affidavit per 49 CFR Part 26,83{h). Third-Party Challenges Provisions exis# in the Standard operating Procedure for the Certifying TUCP Partners to accept written complaints from a third party alleging the ineligibility of a currently certified firm. .~. ~ ' ~ . - , Appeals Process and Procedures An appeals procedure has been established as park of the TX SOP for appeals of denial ofi original certification, and decertification that provides due process to the affected firm in accordance with 49 CF'R Park 2fi. Denials of Original Certifications and Decertihcatian: The DBE applicant has the _.. _ opportunit~C.~ appeal.to.~.S..DQT...in...accordanca,~ncitlL4S..CFgPart2H ~9._PUms that are decertified will have due process in accordance with 49 CFR Part 26.87. IMPLEMENTATION SCHEDULE The Certifying TUCP Partners will inform the public about the TUCP by holding public meetings throughout the State immediately upon approval by the USDOT of this MOA Agreement. No#ificatian of the public meetings as well as the TUCP will occur in a variety of ways, including but not limited to the following: press releases, a no#ice on the Certifying TUCP Partners' website, and direct mailings to individual DBE firms, professional assaciatians and community based organizations. This MOA was submitted to the non-Certifying TUCP Partners, USDOT mad al agencies and the Certifying TUCP Partners' respective counsels for their review and comment, Changes and revisions were made based on the comments received. The MOA was then re-submitted to all TUCP Partners for signature. The following actions will be taken and completed by the Certifying Partners or designees no later than 18 months from the date of USDOT approval of this MOA Agreement; Staff Training • Develop and finalize training modules for SOP Manual, eligibility criteria, farms and procedures, on-site review, personal net worth analysis, Internet-based system (DBE on-line directory). • Recruit instructors and determine locations for training workshops. • Schedule Jain# Training Sessions. • Conduct lnitiai Training. -7- ' 9 ' ~ " i 4~nified ®BE ®iirect®ry Develop and complete parameters for Unified DBE Directory. ~ Compare UCP Certifying Partners databases. a Remove duplicate DBE firms. ® Develop common_ database: ______ _ $ Develop procedures for eiectronic submission of DBE firms for inclusion in the Unified DBE Directory. • Develop and issue press retease on public access to online DBE Directory (information wilt be maintained on TXDOT Website). Transition of Currently Certified DBEs The following ac#ions have been accomplished by the TUCP Partners:('I) Each TUCP Partner has ensured each DBE has been certified under 49 CFR Parts 26 and 23, (2J TUCP Partners have reviewed the DBE firms and determined which TUCP Partner will have responsibili#y.for the DBE firm's continued participation in the DBE program in accordance with 49 CFR Parts 28 and 23, based upon the geographical bcation of the DBE's home offce; (3) Each TUCP Partner has forwarded to the designated TUCP Partner, the DBE certification file for which it has assumed responsibility based upon the geographical location of the DBE's home office. CHANGES TO THE MOA Changes to this MOA Agreement shall require the approval of the TUCP Certifying Partners and U.S. DOT. SUMMARY As a result of the requirements set forth in 49 CFR Parts 26 and 23, we the undersigned, agree to participate in the STATE OF TEXAS'S Unified Certification Program in accordance with the provisions of this MOA and agree to abide by its contents EXECUTED AND DELIVERED by and between the TUCP Partners as of the effective date of this MOA. .g. 4 e ' i ~. o a • i a , n ~ 1 6 EXECUTED A1VD DELI`IE1~ED by and between the TUCP Partners as of the effectide date of this N~[~A. TUCP CERTYFYING PARTNERS /U R Date ~~~~~~ Title . i ~~°~ ~~' A~ (~ Agency 05 0 ~ 2005 9 o x 1 ~, f f ~ r ' " ` ' t E~ECUTEL9 AND DELI~TERED by and between the TUCP Partners as of the effective date of this MOA. TiJCP CERT~FYiN~ PAI2.TNERS . ~ ` A~ Date ~X~iff V F ~ I I~~! bl~ Title S~-r Agency 9 n , m -r s ... ~ .., ~ L..'~.I N®rth Central Texas ~egi~nal Certsfc~at~®n Ag cy, ; AND ~~~~ 25 f,„f fu- ~f2 e~ u TU~~ Memorandum of Agreement Signature Page Executed and Delivered i7y the NCTRCA a TUCP Certifying Partner .1ohn ~Ceiiy, Director "jkeily@nctrca.org" 28, ~Yl rte, 2V a ,~ Date • 624 Six Flags Drive, Suite 216, Arlington, TX 78011 Meiro {817) fiR0-g6g6 • Fax (817) $4q-6315 + www.nctrca.org ~ ~ ' 3 ~ ~ ~ i EXECUTED AND DELIVERED by and between the TUCP Partners as of the effective date of this NTQA. 7CiJCP CER'I`IF`~'ING PARTNERS -~~~~ Name Date Title - .. _ .Age y t ~' o ,e E~CUTEI~ ACID DEL,~TEI~D by and betvveea~ the T~TCP ~~ers as ®f tic effective date ~f this M®.~. Ti~CP CERTIFYING PARTNERS Name- ~ ~ ~ Date- June 1, 2005 /~` Title- ~ ~- Aeenc~ ~ ,~ ~~ .g. a t ~ ~ . t' b i ' oa j EXECEITED AND DELIVERED by and between the TUCP Partners as of the effective date of #his MOA, TUCP CERTIFYING PARTNER ~- ~ , ~~ Lamont C. Tayl Date DBE/EEO Officer Regional Transportation Authority 1'~ 1~TTACHMENT 11 Disa~dta.nt~t~ ec{ Busir'•ess I~tlterpf-is~s Forms v r. r:5 P~~e 1 cif 1 2~ r~u:nip i"rinl,i:..-.I l1,' `ii;~ ha;iil Fs{s ~:'jt~is F~usiri~r>s ~!ith ?k[.:G? ; CnrF?prw i Drivirrs & V~tlicles 'I local fnfrirmatian ; hews; i Proj~ rt>; P:iblir. InVrlvwmer)i j STfety i Travel i TXt]gT Library ; Ahout ils ,Search TxDOT I: ialzFil DislriCts~ Divisions; Offices v ''xDOT Literary I Fcrms I I lJlnxi ReL;ues4ael F^rmt I i ,4virt!un /3ane! n-Atrhar. knia I i ft Pl'E Vf`[?p.Pn i i (:arerr= I.i VF' R4CJhI5 Grin{)luis[ts Cnnsuttants t< Gpntractars ~ ! ('rash Roc-snits i Fifi: f:~ r:ll.'.:.3L ~5 I i7riaars & L+e?riches ~ i EJitl&nGAI RC:S7C+l)3ft):Iil'y' ; F1 Cl lJr_r.?opiCl VLt]CI£ r>r~nvers j I E ianOn ?.aw I i :. icen;e a~ld sr~,c,anyr P13fi!E i r/~o.or Crrrizir_ I Metar 4rehic.!e Dealers I ~ t;uusaor t;wenising Pula}ir. Transj3t![-Sati~)n 1 ixail :irs[i Rail S;Jt'e3y I Riigister Yntlr V[rhi: le [.Sx tSSCS SGI'.4GileCIOCS I i ~I~itlc YOUr V9tlf1:l4 ', ~~f3UiICatIQ115 I ~:1 iiFOiVi~GQ i .- E fir{; p;', i 1lhpre 4ntcrrr~eticn PaCJf t7F1:l rills A~ i:!Il.il ~': .:Cfl I DisadWantaged Business Enterprises Forms You may download the software (Tools and Plug iris) needed to access forms or view frequently asked questions regarding forms (online Farms FAQs). Na. i'itfe :Format 2099 ~TUCP OBE Uniform Certification Application °`" 2103 iTUCP-DBE Annual U date Affidavit '*.` ! 2177 Prompt Payment CerElficahon (Federal-Aid Protects) "t 2178 DBE Jomt Check Approval "" .. ' 21$2 Cammerclatly Usaful Functlori (CtJF) Protect Site Review '°7 2184 [Prime Contractor :DBE Good Faith Effort . ~° 2228 'DBE Sutrstitutlan Request "*. 2307 ;DBE Needs Assessment "'= 5M5.4901 DBE Commitment Agreement `,` i SM5.490t-MS DBE Program Material and Supplier Commitment Agreement SMS.4901•T iDBETrucking Commitment Agreement '"`"' ~ i...__..SMS.4902 iDBE Prime Con -___.-------..---------.._......_-..._~_---------._____-._.._ i tractor Payments to Nan-DBE Subcontractors __- _..__.~_.~.~ "'°~' SMS.4903 ;DBE Monthly Progress Report SMS.a904 iDBE Final Report "" More Informalfon m Disadvantaged Business En#erpriss (DBE) Program ',:e : :=I`d~.-: US Sr= ;. -r: i snarini ~.~;:- r-:., :,'. r.. ..: _~..: _L._'. .~ ;{-:_ ~ 4l;t.:_i_6. ...i:~, I : nl-l-ill 3..I •J.:1-I.L.a , 'JGI:;, i:l:'J"/t"+_I --B-P::; i ..~ ~, ~ -~ I. f -..:.._- . /. iu Iv . ,.. - ~-r__.. r -. ....s _..~ 1 ,.'[1 ., ~::-1. ~ )•u -:I1"L .~._ y~:]'~h. ~.. G11L_ I.. [1i= C .:lIS i 'L~~J.. L:;.:S!1+ :. _[Gi'-1 F'.. ~. fs. fir:.. .f. -.-: , -:)~. .~-..~~qi:l.~ jam,, •• _ .. .~- _... F ~ . :. - !., ~` l3ad[ http:i/w~~v+~r.dot.state.tx.us/t:~c~ot_]ihraiy/doing_b>rtsiness/dbe.htm