Okaloosa County BOCC — June 17, 2014 — DBE PROGRAM rev 6-2014 — reading text

than those that are provided in subpart B or C of this part; ii. Conditions in your jurisdiction are appropriate for implementing the proposal: iti Your proposal would prevent discrimination against any individual or group in access to contracting opportunities or other benefits of the program; and iv, Your proposal is consistent with applicable law and program requirements of the concerned operating administration's financial assistance program. 3. The Secretary has the authority to approve your application. If the Secretary grants your application, you may administer your DBE program as provided in your proposal, subject to the following conditions: i. DBE eligibility is determined as provided in subparts D and E of this part, and DBE participation is counted as provided in §26.49; ii. Your level of DBE participation continues to be consistent with the objectives of this part; iii. There is a reasonable limitation on the duration of your modified program; and iv. Any other conditions the Secretary makes on the grant of the waiver. 4. The Secretary may end a program waiver at any time and require you to comply with this part's provisions. The Secretary may also extend the waiver, if he or she determines that all requirements of paragraphs (b)(2) and (3) of this section continue to be met. Any such extension shall be for no longer than period originally set for the duration of the program. Subpart B -- Administrative Requirements for DBE Programs for Federally-Assisted Contracting §26.21 Who must have a DBE program? a. If you are in one of these categories and let DOT-assisted contracts, you must have a DBE program meeting the requirements of this part: 1. All FHWA recipients receiving funds authorized by a statute to which this part applies: 2. FTA recipients receiving planning, capital and/or operating assistance who will award prime contracts (excluding transit vehicle purchases) exceeding $250,000 in FTA funds in a Federal fiscal year; 3. FAA recipients receiving grants for airport planning or development who will award prime contracts exceeding $250,000 in FAA funds in a Federal fiscal year. 1. You must submit a DBE program conforming to this part by August 31, 1999 to the concerned operating administration (OA). Once the OA has approved your program, the approval counts for all of your DOT-assisted programs (except that goals are reviewed by the particular operating administration that provides funding for your DOT-assisted contracts). 2. You do not have to submit regular updates of your DBE programs, as long as you remain in compliance. However, you must submit significant changes in the program for approval. c. You are not eligible to receive DOT financial assistance unless DOT has approved your DBE program and you are in compliance with it and this part. You must continue to carry out your program until all funds from DOT financial assistance have been expended. [64 FR 5126, Feb. 2, 1999, as amended at 64 FR 34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000] §26.23 Whatis the requirement for a policy statement? You must issue a signed and dated policy statement that expresses your commitment to your DBE program, states its objectives, and outlines responsibilities for its implementation. You must circulate the statement throughout your organization and to the DBE and non-DBE business communities that perform work on your DOT-assisted contracts. §26.25 What is the requirement for a liaison officer? You must have a DBE liaison officer, who shall have direct, independent access to your Chief Executive Officer concerning DBE program matters. The liaison officer shall be responsible for implementing all aspects of your DBE program. You must also have adequate staff to administer the program in compliance with this part. 26.27 What efforts must recipients make concerning DBE financial institutions? You must thoroughly investigate the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged individuals in your community and make reasonable efforts to use these institutions. You must also encourage prime contractors to use such institutions. §26.29 What prompt payment mechanisms must recipients have? a. You must establish, as part of your DBE program, a contract clause to require prime contractors to pay subcontractors for satisfactory performance of their contracts no later than a specific number of days from receipt of each payment you make to the prime contractor. This clause must also require the prompt return of retainage payments from the prime contractor to the subcontractor within a specific number of days after the subcontractor's work is satisfactorily completed. 1. This clause may provide for appropriate penalties for failure to comply, the terms and conditions of which you set. 2. This clause 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. b. You may also establish, as part of your DBE program, any of the following additional mechanisms to ensure prompt payment: 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. §26.31 What requirements pertain to the DBE directory? You must maintain and make available to interested persons a directory identifying all firms eligible to participate as DBEs in your program. In the listing for each firm, you must include its address, phone number, and the types of work the firm has been certified to perform as a DBE. You must revise your directory at least annually and make updated information available to contractors and the public on request. §26.33 What steps must a recipient take to address overconcentration of DBEs in certain types of work? a. lf you determine that DBE firms are so overconcentrated in a certain type of work as to unduly burden the opportunity of non-DBE firms to participate in this type of work, you must devise appropriate measures to address this overconcentration. b, These measures may include the use of incentives, technical assistance, business development programs, mentor-protégé programs, and other appropriate measures designed to assist DBEs in performing work outside of the specific field in which you have determined that non-DBEs are unduly burdened. You may also consider varying your use of contract goals, to the extent consistent with §26.51, to unsure that non-DBEs are not unfairly prevented from competing for subcontracts. c. You must obtain the approval of the concerned DOT operating administration for your determination of overconcentration and the measures you devise to address it. Once approved, the measures become part of your DBE program. §26.35 What role do business development and mentor-protégé programs have in the DBE program? a. You may or, if an operating administration directs you to, you must establish a DBE business development program (BDP) to assist firms in gaining the ability to compete successfully in the marketplace outside the DBE program. You may require a DBE firm, as a condition of receiving assistance through the BDP, to agree to terminate its participation in the DBE program after a certain time has passed or certain objectives have been reached. See Appendix C of this part for guidance on administering BDP programs. b. As part of a BDP or separately, you may establish a "mentor-protégé " program, in which another DBE or non-DBE firm is the principal source of business development assistance to a DBE firm. 1. Only firms you have certified as DBEs before they are proposed for participation in a mentor-protégé program are eligible to participate in the mentor-protégé program. 2. During the course of the mentor-protégé relationship, you must: i. Not award DBE credit to a non-DBE mentor firm for using its own protégé firm for more than one half of its goal on any contract !et by the recipient; and ii. Not award DBE credit to a non-DBE mentor firm for using its own protégé firm for more than every other contract performed by the protégé firm. 3. For purposes of making determinations of business size under this part, you must not treat protégé firms as affiliates of mentor firms, when both firms are participating under an approved mentor-protégé program. See Appendix D of this part for guidance concerning the operation of mentor-protégé programs. c. Your BDPs and mentor-protégé programs must be approved by the concerned operating administration before you implement them. Once approved, they become part of your DBE program. §26.37 What are a recipient's responsibilities for monitoring the performance of other program participants? a. You must implement appropriate mechanisms to ensure compliance with the part's requirements by all program participants (e.g., applying legal and contract remedies available under Federal, state and local law). You must set forth these mechanisms in your DBE program. b. Your DBE program must aiso include a monitoring and enforcement mechanism to ensure that work committed to DBEs at contract award is actually performed by DBEs c. This mechanism must provide for a running tally of actual DBE attainments (e.g., payments actually made to DBE firms), including a means of comparing these attainments to commitments. In your reports of DBE participation to the Department, you must display both commitments and attainments. [64 FR 5126, Feb. 2, 1999, as amended at 65 FR 68951, Nov. 15, 2000] Subpart C -- Goals, Good Faith Efforts, and Counting §26.41 What is the role of the statutory 10 percent goal in this program? a. The statutes authorizing this program provide that, except to the extent the Secretary determines otherwise, not less than 10 percent of the authorized funds are to be expended with DBEs. b. This 10 percent goal is an aspirational goal at the national level, which the Department uses as a tool in evaluating and monitoring DBEs' opportunities to participate in DOT-assisted contracts. c. The national 10 percent goal does not authorize or require recipients to set overall or contract goals at the 10 percent level, or any other particular level, or to take any special administrative steps if their goals are above or below 10 percent. §26.43 Can recipients use set-asides or quotas as part of this program? a. You are not permitted to use quotas for DBEs on DOT-assisted contracts subject to this part. b. You may not set-aside contracts for DBEs on DOT-assisted contracts subject to this part, except that, in limited and extreme circumstances, you may use set-asides when no other method could be reasonably expected to redress egregious instances of discrimination. §26.45 How do recipients set overall goals? a. d, 1, Except as provided in paragraph (a)(2) of this section, you must set an overall goal for DBE participation in your DOT-assisted contracts. 2. If you are a FTA or FAA recipient who reasonably anticipates awarding (excluding transit vehicle purchases) $250,000 or less in FTA or FAA funds in prime contracts in a Federal fiscal year, you are not required to develop overall goals for FTA or FAA respectively for that fiscal year. However, if you have an existing DBE program, it must remain in effect and you must seek to fulfill the objectives outlined in §26.1. Your overall goal must be based on