DAVID GIONGCO Caltrans Local Assistance Engineer

US DOT DBE Final Rule

Updated 11/25/14: The implementation date for the new policies and procedures is being discussed further. The post has been updated to reflect the date has yet to be determined.

In an email sent to Public Work Directors, Ray Zhang, Chief of Division of Local Assistance, provided notice of upcoming DBE program changes:

On October 2, 2014, the U.S. Department of Transportation (U.S. DOT) published a final rule amending 49 Code of Federal Regulations (CFR) Part 26 and the Disadvantaged Business Enterprise (DBE) program.

The final rule makes important changes to the implementation of the DBE program regulations. The major changes that will affect your Federal-aid transportation projects are:

  • DBE Trucking Participation – Allows a DBE firm to take credit for the total value of the hauling services even when the DBE firm’s drivers use trucks leased from non-DBE truck leasing company.
  • Uniform Report of DBE Awards or Commitments and Payments – Adds requirement to report payments made to DBEs on ongoing contracts during the reporting period.
  • Contract/Subcontract language – Requires agencies to include assurance language in contracts and prime contractors to insert assurance language into subcontracts with DBEs.
  • Additional Guidance on Good Faith Efforts:
    • Provides additional examples of actions taken by bidders that may be considered when evaluating good faith efforts.
    • Requires bidder to submit good faith effort documentation to the agency no later than 7 days after bid opening. The 7 days is shortened to 5 days on January 1, 2016.
    • For substitutions of DBE firms after contract award, requires good faith effort documentation to be submitted to the agency within 7 days of the request for substitution.

We are working with Federal Highways Administration (FHWA) and developing an Local Assistance Office Bulletin that will provide detailed procedural directions to implementing the aforementioned changes, including a reasonable transition dates for implementing these changes.

Additional information about the modifications to the DBE program can be found at U.S. DOT’s “DBE Final Rule – Program Implementation Modifications”.

The office bulletin hasn’t been issued yet, but FHWA and the Office of Business and Employment Opportunity (OBEO)1 have communicated that program changes will need to be implemented on projects **advertised after December 15, 2014**2 TBD. One of the key documents to be included with the office bulletin will be an updated LAPM Exhibit 12-G, Required Federal-aid Contract Language. It will be revised to include the required DBE provisions for incorporation into all federal-aid contracts.

  1. Administrator for the state DBE program. 

  2. Final Rule changes actually became effective November 3, 2014. The December 15, 2014 date was approved by FHWA and OBEO to allow local agencies to transition to the DBE program amendments. An implementation date for local agencies has yet to be determined as of the time of this post.