Subpart B - Administrative Requirements

• Section 26.21 DBE Program Updates
• Section 26.23 Policy Statement
• Section 26.25 DBE Liaison Officer (DBELO)
• Section 26.27 DBE Financial Institutions
• Section 26.29 Prompt Payment Mechanisms
• Section 26.31 Directory
• Section 26.33 Over-concentration
• Section 26.35 Business Development Programs
• Section 26.37 Monitoring and Enforcement Mechanisms
• Section 26.39 Fostering small business participation.

Section 26.21 DBE Program Updates

The [Recipient] is required to have a DBE program meeting the requirements of this part as it will receive grants for airport planning or development and will award prime contracts, cumulative total value of which exceeds $250,000 in FAA funds in a federal fiscal year. We are not eligible to receive DOT financial assistance unless DOT has approved our DBE program and we are in compliance with it and this part. We will continue to carry out our program until all funds from DOT financial assistance have been expended. We do not have to submit regular updates of our program, as long as we remain in compliance. However, we will submit significant changes in the program for approval.

Section 26.23 Policy Statement

The Policy Statement is elaborated on the first page of this DBE Program.

Section 26.25 DBE Liaison Officer (DBELO)

We have designated the following individual as our DBE Liaison Officer:

[Provide the following information:
Name,
Title,
Address,
Telephone Number,
Fax Number,
E-mail Address]

In that capacity, the DBELO is responsible for implementing all aspects of the DBE program and ensuring that the [Recipient] complies with all provision of 49 CFR Part 26. The DBELO has direct, independent access to the [indicate chief executive officer of Recipient] concerning DBE program matters. An organization chart displaying the DBELO’s position in the organization is found in Attachment __to this program.

The DBELO is responsible for developing, implementing and monitoring the DBE program, in coordination with other appropriate officials. The DBELO has a staff of [indicate the number of staff or resources, this would include other offices for coordination, i.e. legal or consultant engineers] to assist in the administration of the program. The duties and responsibilities include the following:

[Note: The following are examples. Include only those responsibilities that the DBELO actually performs. Add additional responsibilities if appropriate.]

1. Gathers and reports statistical data and other information as required by DOT.
2. Reviews third party contracts and purchase requisitions for compliance with this program.
3. Works with all departments to set overall annual goals.
4. Ensures that bid notices and requests for proposals are available to DBEs in a timely manner.
5. Identifies contracts and procurements so that DBE goals are included in solicitations (both race-neutral methods and contract specific goals) and monitors results.
6. Analyzes [Recipient’s] progress toward attainment and identifies ways to improve progress.
7. Participates in pre-bid meetings.
8. Advises the CEO\governing body on DBE matters and achievement.
9. Chairs the DBE Advisory Committee.
10. Determine contractor compliance with good faith efforts.
11. Provides DBEs with information and assistance in preparing bids, Plans and participates in DBE training seminars.
12. Acts as liaison to the Uniform Certification Process.
13. Provides outreach to DBEs and community organizations to advise them of opportunities.
14. Maintains the agency’s updated directory on certified DBEs.

Section 26.27 DBE Financial Institutions

It is the policy of the [Recipient] to investigate the full extent of services offered by financial institutions owned 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 contracts to make use of these institutions.

[Include in this section efforts made to identify financial institutions and the results of those efforts. Also indicate how often you will investigate the availability]

Section 26.29 Prompt Payment Mechanisms

The [Recipient] has established, as part of its DBE Program, a contract clause to require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment you make to the prime contractor.

We will ensure prompt and full payment of retainage from the prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed. We will use one of the following methods to comply with this requirement:[Regulation requires that you select ONLY One of the following:]

1. Decline to hold retainage from prime contractors and prohibit prime contractors from holding retainage from subcontractors.
2. Decline to hold retainage from prime contractors and require a contract clause obligating prime contractors to make prompt and full payment of any retainage kept by prime contractor to the subcontractor within 30 days after the subcontractor's work is satisfactorily completed.
3. Hold retainage from prime contractors and provide for prompt and regular incremental acceptances of portions of the prime contract, pay retainage to prime contractors based on these acceptances, and require a contract clause obligating the prime contractor to pay all retainage owed to the subcontractor for satisfactory completion of the accepted work within 30 days after your payment to the prime contractor.

[Recipient] will consider a subcontractor's work is satisfactorily completed when all the tasks called for in the subcontract have been accomplished and documented as required by the [Recipient]. When [Recipient] has made an incremental acceptance of a portion of a prime contract, the work of a subcontractor covered by that acceptance is deemed to be satisfactorily completed.

[Recipient] will provide appropriate means to enforce the requirements of this section. These means include:

[List the means that will be utilized: addressing appropriate penalties for failure to comply, the terms and conditions of which you set; your program may also provide that any delay or postponement of payment among the parties may take place only for good cause, with your prior written approval].

The [Recipient] will include the following clause in each DOT-assisted prime contract:

The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than [specify number] days from the receipt of each payment the prime contractor receives from [ Recipient]. The prime contractor agrees further to return retainage payments to each subcontractor within [specify same number as above] days after the subcontractors work is satisfactorily completed. Any delay or postponement of payment from the above referenced timeframe may occur only for good cause following written approval of the [ Recipient]. This clause applies to both DBE and non-DBE subcontractors.

[Note – This is sample language. Recipients can use existing prompt payment clause or draft their own, as long as they meet the substantive requirements of 26.29. This portion of the program may also state what sanctions/consequences the recipient attaches to noncompliance with the prompt payment clause and the procedures through which they are enforced. In addition, this portion of the program may also include other prompt payment – related provisions, such as an alternative dispute resolution mechanism that the recipient chooses to use.]

The [Recipient] has also established, as part of our DBE program, the following mechanisms to ensure prompt payment:[Note this is section is optional, only include if you will implement and only select what you will implement].

1. A contract clause that requires prime contractors to include in their subcontracts language providing that prime contractors and subcontractors will use appropriate alternative dispute resolution mechanisms to resolve payment disputes. You may specify the nature of such mechanisms.
2. A contract clause providing that the prime contractor will not be reimbursed for work performed by subcontractors unless and until the prime contractor ensures that the subcontractors are promptly paid for the work they have performed.
3. Other mechanisms, consistent with this part and applicable state and local law, to ensure that DBEs and other contractors are fully and promptly paid.

Monitoring Payments to DBEs

We will require prime contractors to maintain records and documents of payments to DBEs for three years following the performance of the contract. These records will be made available for inspection upon request by any authorized representative of the [Recipient] or DOT. This reporting requirement also extends to any certified DBE subcontractor.

We will perform interim audits of contract payments to DBEs. The audit will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation.

Section 26.31 Directory

[Select one:]

The [Recipient] maintains a directory identifying all firms eligible to participate as DBEs.

OR

The [Recipient] uses the State of _________ DBE directory, maintained by the State.

The directory lists the firm’s name, address, phone number, and the type of work the firm has been certified to perform as a DBE. In addition, the directory lists each type of work for which a firm is eligible to be certified by using the most specific NAICS code available to describe each type of work.

[We revise OR The state UCP revises] the Directory [interval; must be at least annually.] We make the Directory available as follows:[list address, phone number, website, or other means by which interested persons can obtain access to the Directory]. The Directory may be found at (website link or attachment).

[Note: All recipients are required to participate in a combined statewide directory.]

Section 26.33 Over-concentration

[Recipient] has not identified that over-concentration exists in the types of work that DBEs perform.

OR

[Recipient] has identified that over-concentration exists in the area of [ state area].

[Note: If a recipient has identified over-concentration, then please describe the rational for having the program element, the specific provisions of the element (e.g., what is the over-concentration that has been identified, how the program element works, and how interested persons would obtain information about the program element).]

Section 26.35 Business Development Programs

[Recipient] has a DBE Business Development Program (BDP) to assist firms in gaining the ability to compete successfully in the marketplace outside the DBE Program. The rational for the BDP is [describe rational for having the program element; the specific provisions of the element (e.g., who is eligible to participate, how does the program element work, how does the recipient implement, and how would interested persons obtain information about the program element).]

OR

[Recipient] has not established a business development program.

Section 26.37 Monitoring and Enforcement Mechanisms

The [Recipient] will take the following monitoring and enforcement mechanisms to ensure compliance with 49 CFR Part 26.

1. We will bring to the attention of the Department of Transportation any false, fraudulent, or dishonest conduct in connection with the program, so that DOT can take the steps (e.g., referral to the Department of Justice for criminal prosecution, referral to the DOT Inspector General, action under suspension and debarment or Program Fraud and Civil Penalties rules) provided in 26.107.
2. We will implement similar action under our own legal authorities, including responsibility determinations in future contracts. Attachment ___ lists the regulation, provisions, and contract remedies available to us in the events of non-compliance with the DBE regulation by a participant in our DBE Program.
3. We will implement a monitoring and enforcement mechanism to ensure that work committed to DBEs at contract award or subsequently (i.e., as the result of modification to the contract) is actually performed by the DBEs to which the work was committed.
4. We will implement a monitoring and enforcement mechanism that will include written certification that we have reviewed contracting records and monitored work sites for this purpose. [The monitoring to which this paragraph refers may be conducted in conjunction with monitoring of contract performance for other purposes (e.g., close-out reviews for a contract.] This will be accomplished by [set forth the specific means the recipient will use to ensure compliance with Part 26 requirements by all participants and those of your DBE program.]
5. We will implement a mechanism that will provide for a running tally of actual DBE attainments (e.g., payment actually made to DBE firms), including a means of comparing these attainments to commitments. In our reports of DBE participation to DOT, we will show both commitments and attainments, as required by the DOT uniform reporting form.

Section 26.39 Fostering small business participation.

The [Recipient] has created a Small Business element to structure contracting requirements to facilitate competition by small business concerns, taking all reasonable steps to eliminate obstacles to their participation, including unnecessary and unjustified bundling of contract requirements that may preclude small business participation in procurements as prime contractors or subcontractors.

The [Recipient’s] small business element is incorporated as Attachment __ to this DBE Program. We will actively implement the program elements to foster small business participation; doing so is a requirement of good faith implementation of our DBE program.