Counting DBE Participation & Assessing Commercially Useful ...

Counting DBE Participation & Assessing Commercially Useful ...

Counting DBE Participation Introduction to the & DBE/ACDBE Assessing Commercially Useful Function (CUF) Programs Presented by: Eliz Presented by: Sonia Cruz & Alexander Horton DBE/ACDBE Compliance Specialists July 16, 2019 Training Objectives Knowledge of the DBE/ACDBE program, goal

and reporting requirements Understanding the role of a DBE/ACDBE Liaison Officer (DBELO/ACDBELO) Identifying resources available 2 What do these Terms Mean? Definitions Disadvantaged Business Enterprise (DBE) 49 CFR Part 26 Airport Concessions DBE (ACDBE) 49 CFR Part 23 3

What are the Objectives of the USDOTs DBE Program? To ensure nondiscrimination in the award and administration of DOT-assisted contracts in the Departments highway, transit, and airport financial assistance programs To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts To ensure that the Departments DBE program is narrowly tailored in accordance with applicable law To ensure that only firms that fully meet this parts eligibility standards are permitted to participate as DBEs 4 What are the Objectives of the USDOTs DBE Program Contd? To help remove barriers to the participation of DBEs in DOTassisted contracts To promote the use of DBEs in all types of federally-assisted

contracts and procurement activities conducted by Recipients. To assist the development of firms that can compete successfully in the marketplace outside the DBE program To provide appropriate flexibility to Recipients of Federal financial assistance in establishing and providing opportunities for DBEs 5 DBE Program Recipient Responsibilities Implementation of program is a legal obligation and failure to carry out its terms shall be treated as a violation. Implement program in good faith Stay up-to-date on regulations and guidance Apply good practices to ensure airport compliance

6 What is the Role of the DBELO? The DBELO is responsible for: I. Developing II. Implementing and III.Monitoring the DBE Program In coordination with other appropriate staff and organizational officials 7 What is a Recipients DBE Program? Written document that meets regulatory requirements of Part 26 Sample template updated February 2019

Explains how the Recipient will implement the DBE Program at its airport(s) Identifies the DBE Liaison Officer 8 What is the Role of the DBELO in Developing the Program? Coordination! Set meetings Include all affected areas or departments

Get organizational buy-in Ensure others know what changes they need to make, if any 9 What is the Role of the DBELO in Developing the Program Contd? Update document as needed for significant changes Why it matters: Recipient is not eligible to receive DOT financial assistance unless DOT has approved the DBE Program and Recipient is in compliance with its own Program and Part 26 (26.21(c)) 10

What Resources are Available for Developing the Program? DBE Program Sample Template Official Questions and Answers (Q&As) Disadvantaged B usiness Enterprise Program Regulations (49 CFR 26 ) Highlights of Major Changes in the 2014 DBE Fi nal Rule FAA Guidance USDOT Guidance 11 Prompt Payment Sample Template What is a DBE Overall Goal?

The DBE Goal is NOT your DBE Program Goal methodology often included as an appendix or attachment to the Program Based on demonstrable evidence of the availability of ready, willing & able DBEs Represents DBE participation the Recipient would expect to see in the absence of discrimination Sample goal methodology includes approaches that you may take to calculate goal Due every three years; schedule based on airport size 12 DBE Overall Goals for Airport Grant Recipients: Due by August 1 Airport Type

Region Date Due Period Covered Large & Medium Hub Primary All 2019 2020/2021/2022 Small Hub Primary All

2020 2021/2022/2023 Non-Hub Primary All 2018 2019/2020/2021 Non-Primary (GAs, Relievers & State DOTs) Alaskan, Eastern, &

Great Lakes 2019 2020/2021/2022 Non-Primary (GAs, Relievers & State DOTs) New England, Northwest Mountain & Southern 2020 2021/2022/2023

Non-Primary (GAs, Relievers & State DOTs) Central, Southwest, & Western-Pacific 2018 2019/2020/2021 13 What is a Typical DBE Goal Submittal Timeline? April 1

Identify Opportunities May 1 Identify DBEs & NonDBEs June 1 Plan for Consultation Process July 1 Post Notice Official Website

August 1 Last day to submit Goals 14 What is the Role of the DBELO in Developing the Overall DBE Goal? Coordination! Obtain list of all projects/procurements expected to receive FAA funding Include studies, design, engineering, construction, professional services Ensure projects broken down into relevant scopes with appropriate NAICS codes Conduct proper consultation

Make sure goal is posted to website Contact person for the program for FAA and community 15 What Resources are Available for Goal Setting? NEW: Goal-setting tool in FAA Civil Rights Connect Tips for Goal Setting Official Questions and Answers (Q&As) Disad vantaged Business Enterprise Program Regulat ions (49 CFR 26) Western States Paving Q&A for States in the 9th Circuit Court Jurisdiction 16 What is the Role of the DBELO in

Implementing the DBE Program? Ensure your organization is doing what your DBE Program says you do Build consensus during development phase Update CEO on progress. Ask for support if necessary. Make or recommend updates to your DBE Program when necessary 17 Additional Duties of the DBELO in Implementing the DBE Program? Review Solicitations / Specifications DBE requirements included Non-discrimination requirements included Good Faith Efforts (GFE) requirements match your

DBE Program (if applicable) Bidders List information being properly collected No local/state M/WBE programs or prohibited local preferences Determine bidders compliance with DBE goals/GFE requirements 18 Additional duties of the DBELO in Implementing the DBE Program Contd? Review Contracts and Subcontracts Required Contract Clauses

Non-discrimination Prompt Payment Full Payment of Retainage Retainage provisions match DBE Program No termination without good cause, prior written consent (contracts with DBE goals) No internally conflicting language 19 Additional duties of the DBELO in Implementing the DBE Program . . .? Ensure: Procurement team knows how to handle USDOT/FAA funded projects

Legal team is aware of contract language requirements, including advisory circulars Reconsideration official is familiar with requirements of Appendix A and DOTs Official Q&A on Good Faith Efforts All members of organization know to whom DBE questions should be addressed (you!) 20 What Resources are Available for Implementing the DBE Program? Your CEO- you should have direct access! 49 CFR Part 26

Required Federal Contract Provisions Advisory Circular 150/5370-10G (see partial payment (retainage) language in Section 90-06) Airport Improvement Program Handbook 21 What is the Role of the DBELO in Monitoring the DBE Program? Prevent fraud and report if suspected Improve organizations potential to meet its DBE goals Ensure compliance by all participants Yourself (the funding Recipient) Contractors/consultants/primes DBE and non-DBE Subcontractors

22 What is the Role of the DBELO in Monitoring the DBE Program Contd? Create and use a document to certify that DBE contracts and worksites are inspected Detail exactly what was reviewed, by whom, and when Know what to look for: USDOT Office of Inspector General Red Flag Indicators of DBE Fraud 23 What is the Role of the DBELO in Monitoring the DBE Program Cont?

Keep a running tally of actual DBE commitments and attainments to: Monitor proper use of contract goals Report by December 1 awards/commitments payments on on-going contracts payments on contracts completed 24 What is the Role of the DBELO in Monitoring

the DBE Program Contd? Prompt payment and release of retainage Primes must pay subs no later than 30 days after receipt of payment from recipient Applies to all DOT-funded agreements, even when no DBE contract goals Applies to both DBE and non-DBE subcontractors Addresses requirements for release of retainage Prompt payment must be actively monitored Do NOT rely solely on complaints Use automated system, website, or other affirmative steps to confirm prompt pay and release of retainage 25 What is the Role of the DBELO in Monitoring the DBE Program?

Reporting Prompt Payment Complaints 2018 FAA Reauthorization (Public Law No. 115254) Airport sponsors must track and report subcontractors allegations of non-compliance Report complaints and related data directly to FAA: https://www.surveymonkey.com/r/PromptPaymentCo mplaints Report only valid complaints, and report only after complaint is resolved 26 What is the Role of the DBELO in Monitoring the DBE Program? Shortfall Analysis When You Dont Meet Your Goal Analyze in detail reasons for difference between overall goal and awards/commitments Establish specific steps and milestones to correct

problems identified in the analysis Prepare and retain or submit for approval (if Core 30), within 90 days of the end fiscal year, the analysis and corrective actions and due dates/milestones for approval by FAA 27 What is the Role of the DBELO in Monitoring the DBE Program? Coordination! Ensure monitoring buy-in from project management Work with project managers/inspectors

Ensure accounting and legal teams understand Program mechanics Retainage release Prompt payment requirements Enforcement actions 28 What Resources are Available for Monitoring the DBE Program? Guidance for the Uniform Report OIG Red Flag Indicators Goal Shortfall Analysis Tips Advisory Circular 150/5370-10G (see partial payment (retainage) language in Section 90-06)

29 ACDBE Airport Concessions Disadvantaged Business Enterprise Program 30 What are the Objectives of the USDOTs ACDBE Program? To ensure nondiscrimination in the award and administration of opportunities for concessions by airports receiving DOT financial assistance To create a level playing field on which ACDBEs can compete fairly for opportunities for concessions To ensure that the Department's ACDBE program is narrowly

tailored in accordance with applicable law 31 What are the Objectives of the USDOTs ACDBE Program Contd? To ensure that only firms that fully meet this part's eligibility standards are permitted to participate as ACDBEs To help remove barriers to the participation of ACDBEs in opportunities for concessions at airports receiving DOT financial assistance To provide appropriate flexibility to airports receiving DOT financial assistance in establishing and providing opportunities for ACDBEs 32

What is the Role of the ACDBELO? The ACDBELO is responsible for: I. Developing II. Implementing and III. Monitoring the ACDBE Program In coordination with other appropriate officials 33 What is an ACDBE Program? Written document that meets regulatory requirements of Part 23 Explains how the Recipient will implement the ACDBE Program at its airport(s) Identifies the ACDBE Liaison Officer

34 How does this Differ from the DBE Program? Specific to airport concessions activities Primary airports must have ACDBE programs Non-primary airports must take appropriate outreach steps Recipients establish two ACDBE Overall Goals Car rentals Concession activities other than car rentals 35 What are some Key Points about the ACDBE Program?

Part 23 prohibits Long-Term, Exclusive (LTE) agreements with concessionaires Airport must seek FAA approval for LTE agreements prior to execution (see 23.75) Joint ventures are common Count only the distinct, clearly defined portion of the workthe ACDBE performs with its own forces Count 100% of goods provided by an ACDBE regular dealer 36 What about ACDBE Goals? Goals are set on a triennial basis Part 23 requires Recipients to set two distinct goals for the goal-setting period

Concessions other than car rental Car rental concessions Car rental concessions goals most often based on goods & services purchases and expenditures 37 ACDBE Overall Goals for Airport Grant Recipients: Due by October 1 Airport Type Region Date Due Period Covered Large & Medium Hub Primary

All 2020 2021/2022/2023 Small Hub Primary All 2018 2019/2020/2021 Non-Hub Primary

All 2019 2020/2021/2022 38 What is a Typical ACDBE Goal Submittal Timeline? June 1 Identify Opportunities July 1 Identify ACDBEs & Non-ACDBEs

July 30 Consultation Process October 1 Last day to submit Goals 39 What is the Role of the ACDBELO in Developing, Implementing, and Monitoring the ACDBE Program? Coordination! Program development and goal-setting processes Solicitation and contract language requirements Ensuring appropriate monitoring is happening

Ensuring prior FAA approval is sought for LTE agreements before execution Ensuring organization understands what is considered a concession for Part 23 Contact person regarding program for FAA and community 40 What is the Role of the ACDBELO in Developing, Implementing, and Monitoring the ACDBE Program Continued? Report by March 1: Car Rental & Non Car Rental ACDBE Participation List of Participating Certified ACDBEs

41 What Resources are Available for Developing, Implementing, and Monitoring the ACDBE Program? Your CEO- You should have direct access! Sample ACDBE Program

Joint Venture Guidance Principles for Evaluating Long-Term, Exclusive Lease Agr eements Car Rental Companies Good Faith Efforts Requirements Guidance for the Uniform Report Official Q&As for Part 23 ACDBE Goal Shortfall Analysis 42 DBE/ACDBE Regional Compliance Specialists Region Name Phone and Email Alaskan Region

Alaska Western-Pacific Region Nevada Sonia Cruz (424) 405-7206 [email protected] Central Region Iowa, Kansas, Missouri, Nebraska Western-Pacific Region Northern California Ofelia Medina (424) 405-7205 [email protected]

Eastern Region Delaware, Maryland, New Jersey, New York, Pennsylvania, Virginia, West Virginia Western-Pacific Region Arizona Alexander Horton (954) 641-6637 [email protected] Great Lakes Region Illinois, Indiana, Michigan, Minnesota, North Dakota, Ohio, South Dakota, Wisconsin Nancy Cibic

(847) 294-7182 [email protected] DBE/ACDBE Regional Compliance Specialists Region Name Phone and Email New England Region Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont Western-Pacific Region Southern California

Thomas Knox (424) 405-7208 [email protected] Northwest Mountain Region Colorado, Idaho, Montana, Oregon, Utah, Washington, Wyoming Sonia Cruz (424) 405-7206 [email protected] Southern Region Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Puerto

Rico, Virgin Islands Western-Pacific Region Hawaii Keturah Pristell (404) 305-5734 [email protected] Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma, Texas Dolores Leyva (817) 222-5034 [email protected]

Western-Pacific Region American Samoa, Guam, Northern Mariana Islands Gene Roth (404) 305-5256 [email protected] Questions and Answers 45

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