Disadvantaged Business Enterprises (DBE) Program Minnesota Department of Transportation April 25,...
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- Disadvantaged Business Enterprises (DBE) Program Minnesota Department of Transportation April 25, 2013 Minnesota County Highway Accountants Association, Best Western Plus Kelly Inn St. Cloud, Minnesota Presented By: Ashanti Payne Office of Civil Rights
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- DBE Project Life-Cycle: Beginning to End MnDOTs Policy Statement DBE Project goals (Planning) - When do DBE goals apply? When are they set within MnDOTs procurement process? How are goals set for projects? Contract Clearance - Who is responsible for ensuring goals are met? Commercially Useful Function (CUF) Counting DBE Credit/Trucking Submitting a Responsible Bid (Good Faith Efforts) The Good Faith Effort(GFE) review by DBE Specialist Items which may be reviewed in assessing GFEs
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- DBE Project Life-Cycle (Cont.) Reconsideration Process - Contract Compliance (Post Award DBE Monitoring) On-Site Reviews Replacement of DBEs Prompt Payment Contractor Payment Forms - Final Payment Affidavit DBE Commitments vs. Payments
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- Policy Statement It is the policy of the Minnesota Department of Transportation (MnDOT) that DBEs, as defined in 49 C.F.R. Part 26, and other small businesses, shall have the maximum feasible opportunity to participate in contracts financed in whole or in parts with federal funds. Consistent with this policy and Title VI of 1964 Civil Rights Act, MnDOT will not allow any person or business to be excluded from participation in, denied the benefits of, or otherwise be discriminated against in connection with the award and performance of any U.S. Department of Transportation (USDOT) assisted contract because of sex, race, color, or national origin. MnDOT has established a Disadvantaged Business Enterprise (DBE) program in accordance with the regulations of the DOT, 49 C.F.R. Part 26 to implement this policy.
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- Current Overall DBE Goal 10.3% DBE participation on federally funded projects: FHWA 2009 - 3.9% 2010 - 5.6% 2011 7.6% 2012 6.6% Transit Projects 2009 0 2010 3.6% 2011 0% 2012 8.7% Disadvantaged Business Enterprise (DBE)
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- DBE Goals must be set on any contract(s) financed in whole or in part with federal funds. We review the following when setting goals on any given project on a case by case basis; [project location, project size, sub contracting opportunities, work types & availability (ready, willing & able) of DBEs] Ultimately the Prime Contractors are held to meet the goals identified on the project. However, it is the responsibility of all subs to work closely with the Prime in meeting those goals. What happens if a goal is not met at the time one is set; What happens if a goal is not met throughout the monitoring of the project; DBE Project Goals When do they apply? How and when are they set? Who is responsible for compliance? What if they are not met?
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- Goal Setting Protocol: Step One Office of Civil Rights (OCR) receives required information from District Office and Special Provisions Engineer Project Breakdown Scopes of Work Cost Estimate Advertisement Date Letting Date Anticipated Start Working Days Any Pertinent Project-related Information
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- Goal Setting Protocol (Cont.): Step Two Identifying Scopes of Work DBEs Can perform Bituminous (Pavement, Sawing, Mill, Seal Coats, etc.) Concrete (Bridge, Pavement, Sawing, etc.) Electrical (Supplies Installation, Signals, etc.) Excavation (Clear & Grub, Demolition, Removal of Curb & Gutter, etc.) Fencing (Ornamental, Wire, Chain, Wood, Guardrails, etc.) Landscaping (Mulching, Silt fence, Erosion Control, etc.) Pavement Marking (Interim, Removal, Epoxy, etc.) Materials (Aggregate, RipRap, Oil, etc.) Misc. (Utilities, Drainage, Painting Planning (Traffic Control, Signing, Surveying, Consulting, etc.)
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- Goal Setting Protocol (Cont.): Step Two (Cont.) Identifying Scopes of Work DBEs Can perform Sewer (Installation, RC Pipe, Irrigation, etc,) Rebar/Steel (Installation, Erection, Placement, etc.) Trucking (Grading, Hauling, etc.) Walls (Noise, Retaining, etc.) Other (Any other scopes that may be a part of THIS project)
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- Goal Setting Protocol (Cont.): Step Three Arriving at an Overall DBE Project Goal How is it done? What is the Purpose? Step Four Exclusion of Scopes of Work Why? What are the key factors to consider when excluding work Step Five Establishing a final Project Goal
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- Goal Setting Protocol (Cont.): Step Six Final Approval and Signature from OCR Director Step Seven DBE Project Goal is sent to MnDOT Special Provisions Engineer Step Eight Project is advertised according relevant schedule and appropriate Letting
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- Goal Setting Protocol (Cont.): Questions?
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- Contract Clearance: Meet The Established Goal On The Project!!!!! Meet the DBE goal on a project or demonstrate Good Faith Efforts. The bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirements of 49 C.F.R. Part 26 which, by their scope, intensity, and appropriateness to the objective, could reasonably be expected to obtain sufficient DBE participation. (49 C.F.R. 26.53)
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- Contract Clearance (Cont.): Goal Is Met Commercial Useful Function (CUF) DBE firms must perform at least 30% of subcontract 26.55 (1) A DBE performs a commercially useful function when it is responsible for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially useful function, the DBE must also be responsible, with respect to materials and supplies used on the contract, for negotiating price, determining quality and quantity, ordering the material, and installing (where applicable) and paying for the material itself. To determine whether a DBE is performing a commercially useful function, you must evaluate the amount of work subcontracted, industry practices, whether the amount the firm is to be paid under the contract is commensurate with the work it is actually performing and the DBE credit claimed for its performance of the work, and other relevant factors. (2) A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation. In determining whether a DBE is such an extra participant, you must examine similar transactions, particularly those in which DBEs do not participate. (3) If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own work force, or the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, you must presume that it is not performing a commercially useful function.
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- Contract Clearance (Cont.): Bottom Line MnDOT OCR must determine the value of the work actually performed by the DBE(s) with their own equipment and forces in order to apply it towards the DBE Goal. Forms (Assist OCR in the determination) Exhibit As Bidders List Advertisements and Quotes
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- Counting DBE Credit/Trucking (Cont.): 26.55 How is DBE participation counted toward goals? (a) When a DBE participates in a contract, you count only the value of the work actually performed by the DBE toward DBE goals. (1) Count the entire amount of that portion of a construction contract (or other contract not covered by paragraph (a)(2) of this section) that is performed by the DBE's own forces. Include the cost of supplies and materials obtained by the DBE for the work of the contract, including supplies purchased or equipment leased by the DBE (except supplies and equipment the DBE subcontractor purchases or leases from the prime contractor or its affiliate). (2) Count the entire amount of fees or commissions charged by a DBE firm for providing a bona fide service, such as professional, technical, consultant, or managerial services, or for providing bonds or insurance specifically required for the performance of a DOT-assisted contract, toward DBE goals, provided you determine the fee to be reasonable and not excessive as compared with fees customarily allowed for similar services. (3) When a DBE subcontracts part of the work of its contract to another firm, the value of the subcontracted work may be counted toward DBE goals only if the DBE's subcontractor is itself a DBE. Work that a DBE subcontracts to a non-DBE firm does not count toward DBE goals. (b) When a DBE performs as a participant in a joint venture, count a portion of the total dollar value of the contract equal to the distinct, clearly defined portion of the work of the contract that the DBE performs with its own forces toward DBE goals.
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- Counting DBE Credit/Trucking (Cont.): 26.55 d) Use the following factors in determining whether a DBE trucking company is performing a commercially useful function: (1) The DBE must be responsible for the management and supervision of the entire trucking operation for which it is responsible on a particular contract, and there cannot be a contrived arrangement for the purpose of meeting DBE goals. (2) The DBE must itself own and operate at least one fully licensed, insured, and operational truck used on the contract. (3) The DBE receives credit for the total valu