Subpart E – Certification Procedures

• Section 26.81 Unified Certification Programs
• Section 26.83 Procedures for Certification Decisions
• Section 26.85 Interstate Certification
• Section 26.86 Denials of Initial Requests for Certification
• Section 26.87 Removal of a DBE’s Eligibility
• Section 26.88 Summary Suspension of Certification.
• Section 26.89 Certification Appeals

Section 26.81 Unified Certification Programs

[Recipient] is the member of a Unified Certification Program (UCP) administered by [Name]. The UCP will meet all of the requirements of this section. [Attach a copy of the signed agreement page of the membership of the UCP between the Recipient and the UCP]

[IF YOU ARE NOT A CERTIFYING AGENCY, OMIT SECTIONS 26.83 THROUGH 26.89].

Section 26.83 Procedures for Certification Decisions

We will ensure that only firms certified as eligible DBEs under this section participate as DBEs in our program. We will take the required steps outlined in 26.83(c) in determining whether a DBE firm meets the standards of subpart D of this part.

The firms that we have certified or reviewed and found eligible under part 26, we will again review their eligibility every ___ [state interval at which you intent such reviews. Part 26 says you may conduct such reviews more often than every three years, but you are not required to conduct them at any specific interval]. These reviews will include the following components: [List elements of the review; e.g. will an on-site review or a filling out a new application be mandated, or will recipient make these determinations on a case-by-case basis?]

Once we have certified a DBE, it shall remain certified until and unless we have removed its certification, in whole or in part, through the procedures of § 26.87 of this part, except as provided in § 26.67(b)(1) of this part.

We will not require DBEs to reapply for certification or undergo a recertification process. However, we may conduct a certification review of a certified DBE firm, including a new onsite review, if appropriate in light of changed circumstances (e.g., of the kind requiring notice under paragraph (i) of this section or relating to suspension of certification under § 26.88), a complaint, or other information concerning the firm’s eligibility. If information comes to our attention that leads us to question the firm’s eligibility, we may conduct an on-site review on an unannounced basis, at the firm’s offices and job sites.

“No Change” Affidavits and Notices of Change (26.83(j))

The UCP requires all DBEs owners to inform us, in a written affidavit, of any change in its circumstances affecting its ability to meet size, disadvantaged status, ownership or control criteria of 49 CFR Part 26 or of any material changes in the information provided with [ Recipient’s] application for certification.

The UCP also requires all DBE owners we have certified to submit every year, on the anniversary date of their certification, a “no change” affidavit meeting the requirements of 26.83(j). The text of this affidavit is the following: [This is sample language consistent with the regulatory provision. You may substitute other language consistent with the rule.]:

I swear (or affirm) that there have been no changes in the circumstances of [name of DBE firm] affecting its ability to meet the size, disadvantaged status, ownership, or control requirements of 49 CFR Part 26. There have been no material changes in the information provided with [ name of DBE]’s application for certification, except for any changes about which you have provided written notice to the [Recipient] under 26.83(j). [ Name of firm] meets Small Business Administration (SBA) criteria for being a small business concern and its average annual gross receipts (as defined by SBA rules) over the firm’s previous three fiscal years do not exceed $23.98 million.

The UCP requires DBEs to submit with this affidavit documentation of the firm’s size and gross receipts (e.g., submission of federal tax returns).

The UCP will notify all currently certified DBE firms of these obligations [program should state how and when]. This notification will inform DBEs that to submit the “no change” affidavit, their owners must swear or affirm that they meet all regulatory requirements of Part 26, including personal net worth. Likewise, if a firm’s owner knows or should know that he or she, or the firm, fails to meet a Part 26 eligibility requirement (e.g. personal net worth), the obligation to submit a notice of change applies.

Section 26.85 Interstate Certification

When a firm currently certified in its home state (‘‘State A’’) applies to another State (‘‘State B’’) for DBE certification, State B may, at its discretion, accept State A’s certification and certify the firm, without further procedures. We will follow the procedures defined in Section 26.85.

Section 26.86 Denials of Initial Requests for Certification

If we deny a firm’s application or decertify it, it may not reapply until [select number of months up to 12] have passed from our action. The time period for reapplication begins to run on the date the explanation required by paragraph (a) of this section is received by the firm. An applicant’s appeal of our decision to the Department pursuant to § 26.89 does not extend this period.

Section 26.87 Removal of a DBE’s Eligibility

In the event we propose to remove a DBE’s certification, we will follow procedures consistent with 26.87. Attachment___ to this program sets forth these procedures in detail. [Note – Recipients should append such a procedural attachment or include the state’s UCP.] To ensure separation of functions in a de-certification, the UCP have determined that [name of official or office] will serve as the decision-maker in de-certification proceedings. The UCP have established an administrative “firewall” to ensure that [same official or office named in previous sentence] will not have participated in any way in the de-certification proceeding against the firm (including the decision to initiate such a proceeding).

Section 26.88 Summary Suspension of Certification.

The [Recipient] shall follow the procedures consistent with 26.88 of this Part regarding suspending a DBEs certification.

We shall immediately suspend a DBE’s certification without adhering to the requirements in § 26.87(d) of this part when an individual owner whose ownership and control of the firm are necessary to the firm’s certification dies or is incarcerated.

We will immediately suspend a DBE’s certification without adhering to the requirements in §26.87(d) when there is adequate evidence to believe that there has been a material change in circumstances that may affect the eligibility of the DBE firm to remain certified, or when the DBE fails to notify the recipient or UCP in writing of any material change in circumstances as required by § 26.83(i) of this part or fails to timely file an affidavit of no change under § 26.83(j).

When a firm is suspended pursuant to 26.88 (a) or (b), the [ Recipient] will immediately notify the DBE of the suspension by certified mail, return receipt requested, to the last known address of the owner(s) of the DBE. Suspension is a temporary status of ineligibility pending an expedited show cause hearing/proceeding under § 26.87 of this part to determine whether the DBE is eligible to participate in the program and consequently should be removed. The suspension takes effect when the DBE receives, or is deemed to have received, the Notice of Suspension.

While suspended, the DBE may not be considered to meet a contract goal on a new contract, and any work it does on a contract received during the suspension shall not be counted toward a recipient’s overall goal. The DBE may continue to perform under an existing contract executed before the DBE received a Notice of Suspension and may be counted toward the contract goal during the period of suspension as long as the DBE is performing a commercially useful function under the existing contract.

Following receipt of the Notice of Suspension, if the DBE believes it is no longer eligible, it may voluntarily withdraw from the program, in which case no further action is required. If the DBE believes that its eligibility should be reinstated, it must provide to the [ Recipient] information demonstrating that the firm is eligible notwithstanding its changed circumstances. Within 30 days of receiving this information, we will either lift the suspension and reinstate the firm’s certification or commence a decertification action under § 26.87 of this part. If we commence a decertification proceeding, the suspension remains in effect during the proceeding. The decision to immediately suspend a DBE under paragraph 26.88 (a) or (b) is not appealable to the U.S. DOT.

The failure the [Recipient] to either lift the suspension and reinstate the firm or commence a decertification proceeding, as required by paragraph (g) of this section, is appealable to the U.S. DOT under § 26.89 of this part, as a constructive decertification.

Section 26.89 Certification Appeals

Any firm or complainant may appeal our decision in a certification matter to U.S. DOT. A firm that wants to file an appeal, must send a letter to the U.S. DOT 90 days of the date of the [Recipient’s ] final decision, including information and setting forth a full and specific statement as to why the decision is erroneous, what significant fact that the recipient failed to consider, or what provisions of this Part the recipient did not properly apply. The U.S. DOT may accept an appeal filed later than 90 days after the date of the decision if the U.S. DOT determines that there was good cause for the late filing of the appeal or in the interest of justice.

Such appeals may be sent to:

U.S. Department of Transportation
Departmental Office of Civil Rights
1200 New Jersey Ave., S.E.
Washington, DC 20590-0001

The U.S. DOT makes its decision based solely on the entire administrative record as supplemented by the appeal. The U.S. DOT does not make a de novo review of the matter and does not conduct a hearing. The U.S. DOT may also supplement the administrative record by adding relevant information made available by the DOT Office of Inspector General; Federal, State, or local law enforcement authorities; officials of a DOT operating administration or other appropriate DOT office; a recipient; or a firm or other private party.

The UCP will promptly implement any DOT certification appeal decisions affecting the eligibility of DBEs for our DOT-assisted contracting (e.g., certify a firm if DOT has determined that our denial of its application was erroneous).

[Note: If a recipient has a system for administrative appeals of certification decision, it should mention it here and provide details of the procedure in an Attachment. The program should inform the public that resorting to this system is not a remedy a firm need exhaust before making a certification appeal to DOT under 26.89].