FAA DBE PROGRAM Regulations Update February 25, 2015 Georgia Airports Association Spring Workshop February 25, 2015 Atlanta, GA Ken Weeden & Associates, Inc.

What Is the DBE Program? Objectives: 49 CFR, Part 23, begun in 1980, as “Participation by Minority Business Enterprises in Contracts and Programs Funded by the Department of Transportation” (MBE Program) It evolved through the 1980s, and 1990’s to become the “Disadvantaged Business Enterprise Program (DBE) and, 49 CFR Part 26 in 1999, to this day, with various amendments.

DBE Program Regulatory Update: Georgia Airports Association Spring Workshop REQUIREMENT: 49 CFR Part DBE PROGRAM USDOT grant recipients who receive planning, capital, and/or operating assistance and who will award prime contracts (excluding TVMs-FTA, i.e. transit vehicle manufacturers) exceeding $250,000 in a federal fiscal year must have a DBE Program.

DBE Program Regulatory Update: Georgia Airports Association Spring Workshop DBE Program Regulatory Update: Georgia Airports Association Spring Workshop REQUIREMENT, Cont’d. REQUIREMENT, Cont’d. The GDOT-Aviation Program is a Primary and Direct Recipient of the FAA- AIP allocation of several funding programs: The GDOT-Aviation Program is a Primary and Direct Recipient of the FAA- AIP allocation of several funding programs: Entitlement Entitlement Discretionary Discretionary

DBE Program Update DBE PROGRAM-BASIC ELEMENTS: The basic five (5) responsibility elements in all DBE programs are: General Administrative Oversight and Management Certifications of DBE and ACDBE companies Project Monitoring for Compliance Outreach and Awareness Activities, AND…. Goal Setting and Methodology Development

DBE Program Regulatory Update: Georgia Airports Association Spring Workshop 6 Regulatory Updates in Recent Years: Change in annual DBE goals to every three years, according to schedule Major changes, included PNW change, small business element, monitoring/compliance, no replacement of DBEs for “convenience”, etc Part 23 (Concessions) – Change in PNW 2014-DBE-II “New” FINAL RULE published Oct. 2, 2014-Eff

FAA-AIP: Re-Authorization - Lifeline for Airport DBE Programs For airports (NOT highways or transit), the DBE Program is authorized through the Airport Improvement Program (AIP) every 5 years. January 31, 2012, is the last “official” AIP bill, since It expires Sept. 30,

FAA-AIP: Re-Authorization FAA Modernization and Reform Act of January 31, 2012-Contained some “New” Items. HIGHLIGHTS: Contains a “finding for a continuing compelling need for the Airport DBE program - a legal predicate. Continued funding through FY 2015…1 more year Mandatory Certification Training Program - for all those making certification decisions, to be established by the USDOT Secretary within 1 year, i.e. by This was initiated last year by the FAA, for USDOT.

49 CFR Part 26 – Pub. Oct. 2, New Final Rule - DBE Program HIGHLIGHTS Intent: To improve the Implementation and Administration of the DBE/ACDBE programs. Addresses five (5) Summary Areas: 1.Certification Standards 2.Forms and Data Collection 3.Certification Procedures 4.Goal Setting and Good Faith Efforts 5.Program Administration (General) 9

49 CFR Part 26 – Pub. Oct. 2, New Final Rule - DBE Program CERTIFICATION STANDARDS: [26.65] 1.Business Size - Increase maximum to $23.98 million 2.Economic Disadvantage-Major Change  May be disqualified even if PNW cap is met, due to excess “assets and resources”-SBA 3.Ownership – addresses limiting agreements and practices, which restrict DBE/ACDBE profits. 4.Control – If non-disadvantaged person remains involved with the firm, there is “no control”. 10

49 CFR Part 26 – Pub. Oct. 2, New Final Rule - DBE Program Highlights, cont’d Forms and Data Collection 1.New UCP Application - 9 to 10 pages long. 2.New Personal Net Worth Form 3.Uniform Report of Awards or Commitments and Payments - revised. 4.Moving Ahead for Progress in the 21st Century Act (MAP-21) Report (New) 11

49 CFR Part 26 – Pub. Oct. 2, New Final Rule - DBE Program Highlights, cont’d CERTIFICATION PROCEDURES [26.73] 1.Pre-Qualification 2.Summary Suspension- new, e.g., death or incarceration. 3.Grounds for Removal – new, suspension or debarment, for example. 4.Certification Appeals- May appeal, within time frame, if no decision. 12

49 CFR Part 26 – Pub. Oct. 2, New Final Rule - DBE Program Highlights, cont’d Goal Setting and Good Faith Efforts 1.Overall Goal Setting Methodology; Process Restrictions on use of bidders list No longer required to publish 45-day notice 2.Transit Vehicle Manufacturers (FTA only) Compliance-TVMs could lose bid status; non-comply 3.Submission of Good Faith Efforts reviews Clarifies “responsive” vs “responsible” bids 4.Guidance on Good Faith Efforts What constitutes “good faith?” – additional guidance 13

49 CFR Part 26 – Pub. Oct. 2, New Final Rule - DBE Program Highlights, cont’d PROGRAM ADMINISTRATION 1.Domestic Partnerships and Civil Unions -If recognized under State Law.. 2.Record Retention-all, documenting a DBE’s certification; 3.Contract Assurance- Serious enforcement, with penalties 14

DBE Program Update: AIP- DBE is Attached to AIP Budget Proposals to Exclude AIP for Large and Medium Hubs. Status of DBE? DBE rules do not apply, currently, to TSA, or PFC

49 CFR Part 26 – Pub. Oct. 2, New Final Rule - DBE Program  Contract assurance – The contract clause included in each DOT-assisted contract obligates the contractor to comply with the DBE program regulations in the administration of the contract.  Failure to do so may result in termination of the contract or other remedies that the recipient deems appropriate, including withholding monthly progress payments, assessing sanctions, liquidated damages, and disqualifying the contractor from future bidding as non-responsible.

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