The Disadvantaged Business Enterprise (DBE) requirements of 49 CFR Part 26 and its application to WisDOT contracts are contained within ASP-3.
Per 49 CFR Part 26, Appendix A – the following guidance is taken into account when reviewing good faith effort requests in lieu of meeting the assigned DBE goal:
V. In determining whether a bidder has made good faith efforts, it is essential to scrutinize its documented efforts. At a minimum, you must review the performance of other bidders in meeting the contract goal. For example, when the apparent successful bidder fails to meet the contract goal, but others meet it, you may reasonably raise the question of whether, with additional efforts, the apparent successful bidder could have met the goal. If the apparent successful bidder fails to meet the goal, but meets or exceeds the average DBE participation obtained by other bidders, you may view this, in conjunction with other factors, as evidence of the apparent successful bidder having made good faith efforts. As provided in §26.53(b)(2)((vi), you must also require the contractor to submit copies of each DBE and non-DBE subcontractor quote submitted to the bidder when a non-DBE subcontractor was selected over a DBE for work on the contract to review whether DBE prices were substantially higher; and contact the DBEs listed on a contractor's solicitation to inquire as to whether they were contacted by the prime. Pro forma mailings to DBEs requesting bids are not alone sufficient to satisfy good faith efforts under the rule.
Good Faith Effort (GFE) Guidance
49 CFR PART 26.53: WisDOT's AUTHORITY
When WisDOT establishes a contract goal on a federally funded contract for procuring construction, equipment, services, or any other purpose, a bidder must, in order to be responsible and responsive, make sufficient good faith efforts to meet the goal.
Questions, or for more information contact:
Federal guidance on DBE Replacement 49 CFR Part 26.53, maintains that WisDOT must require that a prime contractor not terminate a DBE subcontractor (or an approved substitute DBE firm) without WisDOT's prior written consent. As of Oct. 13, 2020, the “DBE Replacement Policy” has been renamed, “DBE Commitment Modification Policy."
Contractors - We need your help reporting
neutral DBE engagement. Neutral participation counts toward our overall goal and affects future goal projections.
Contractors need to submit an Attachment A:
- Whenever a new DBE commitment is added to a project
- If a commitment goes up for an existing DBE participation
Learn more about collection and credit for neutral DBE participation.
Madalena Maestri with questions.
These provisions provide an explanation of the federal law and information regarding compliance with the DBE requirements applicable to trucking.
A hiring agreement signed by both the DBE or non-DBE trucking firm (broker) and its DBE lessees must also be submitted with the civil rights and and compliance program section for approval of DBE credit on each and every project.