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Opening DOORS Program
Indianapolis, INSeptember 25, 2012
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Second NPRM on DBE
• Sent to Federal Register August 22nd
• Published September 6, 2012
• Comment period ends
November 5, 2012.Docket number-OST-2012-0147Http://www.regulations.gov
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Highlights • New forms• Definitions• DBE program requirements (who must
have one)• Goal setting• TVMs• Good faith efforts• Counting DBE participation• Certification—not covered during this
session!
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New Forms
• Revised application form (removes old SBA-DOT MOU language)
• Revised semi-annual report:– Track on-going payments– Track women, minority women,
minorities
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Definitions
• Eight new definitions:– Assets– Business, business concern or business
enterprise– Contingent liability– Days– Immediate family member– Liabilities– Non-disadvantaged individual– Principal place of business– Transit Vehicle Manufacturer
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DBE Program• Makes clear that recipient must have
a DBE program if it receives $250K in planning, capital, or operating assistance in a fiscal year.
• Cannot exclude prime contracts below $250K from the threshold
• Proposes to not allow sub-recipients to have their own program—must operate under the direct recipient’s DBE program
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Goal Setting• Would allow use of bidders’ list to
determine relative availability of DBEs, but only if well documented and supported.
• Proposes to disallow use of pre-qualified contractors list to establish availability.
• Proposes to not allow step two adjustments-especially a downward adjust of the availability—unless it is clearly warranted.
• Makes clear that FTA, FHWA or FAA can adjust an improperly determined goal.
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Goal Setting Cont.
• Proposes to allow goals for entire project or just the Federal share.
• Proposes to eliminate the public comment period and allow publication on website only.
• Proposes to require stronger consultation efforts before setting goal.
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TVMs
• Proposes to prohibit TVMS from selectively determining which contracting opportunities are available to DBEs
• Proposes to prohibit transit agencies from issuing overly proscriptive vehicle procurements, which diminishes competition in violation of 49 U.S.C. 5325(h)
• Proposes to prohibit using entire federal share as base figure for DBE goal
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TVMs cont.
• Proposes to require reporting even when there is no activity
• Proposes to make clear that post-award DBE requirements need not be followed when or reported in those years where TVM has not been awarded a contract or is not performing on a contract.
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Good Faith Efforts
• Proposes to remove “responsive/responsible” language.
• Proposes to have Bidders submit all DBE info at time of bid (except in negotiated procurements)
• Proposes to require copies of DBE and non-DBE quotes received when non-DBE was chosen over DBE because of price
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Good Faith Efforts cont.
• Proposes to options for when GFE documents have to be submitted:– At time of original bid– One day after winning the bidA promise by a prime contractor bidder to include DBEs after the award is not evidence of GFE
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Good Faith Efforts Cont.• Proposes new contract clause that work
committed by prime to specific DBE must be performed by that DBE (unless the recipient approves)--or prime cannot be paid for that work
• Proposes a clear process for replacing a DBE during contract performance
• Proposes new contract clause that failure to comply with DBE regulations is a material breach of the contract, resulting in various sanctions
• Proposes to require prime contractor to provide all subcontracts for all DBEs at all levels.
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Good Faith Efforts Cont.
• Proposes to strengthen requirements of recipients when evaluating good faith efforts of contractor failing to meet goal
• Review other bids to determine if higher bids met the goal
• Review and compare bids of DBE and non-DBE when non-DBE was chosen due to price
• No objective checklists
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Counting DBE Participation
• Proposes to allow DBEs to lease trucks from non-DBE leasing firm without any loss of credit.
• Counting must be done on a case-by-case basis—regardless of certification
• Asks for comment regarding “regular dealer” concept. Is a DBE regular dealer just a “middleman”?
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Certification Highlights
• Gross Receipts Cap from $22.41 to $23.98M –inflationary adjustment
• Ownership• Control• Prequalification• Certification decisions• Denials of initial requests for certification• Removal of eligibility• Suspension of certification
Federal Transit Administration
www.fta.dot.gov