DBE News January 2016

Happy New Year! While we look forward to all that 2016 will bring, here is a quick glance back at the DBE highlights of 2015.

Regulation Changes

2015 marked the first full calendar year in which DBE certifiers used the Department’s final rule amending the DBE program to make certification decisions.  The final rule included changes to the Regulation’s size, economic disadvantage, ownership, and control provisions. It also included changes to forms and certification procedures. Please refer to the fact sheet at https://www.civilrights.dot.gov/sites/default/files/2014%20DBE%20Final%20Rule%20Highlights.pdf for a complete list of highlights of the final rule.

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DBE Appeals Backlog

At long last, 2015 saw the elimination of the DBE Appeals backlog.  In May 2015 the Departmental Office of Civil Rights (DOCR) appointed a Project Manager to oversee the elimination of the DBE appeals backlog. DOCR staff members, in concert with attorneys in the Office of the General Counsel, collaborated to adjudicate all of the backlogged appeals. From May to December 2015, the Department processed 203 DBE appeals: 123 Affirmed; 43 Remanded; 23 Reversed; 8 Withdrawn; 4 Certified by Recipients; and 2 Partial Reversed/Remanded.    

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Significant DBE Appeal Decisions

Following are snapshots of some of the most significant DBE certification appeals DOCR adjudicated in 2015. Of the hundreds of cases we decided this year, we chose to highlight these cases for their particularly instructive value for certifiers and firms alike. Redacted versions of these decisions, along with all of DOCR’s appeal decisions, are posted at https://www.civilrights.dot.gov/.

• 14-0XX – this case presented the Department a unique issue regarding interstate certification. A firm not certified in its home state (State A) received DBE certification from State B. The firm subsequently applied for interstate certification in State A. Upon determining that the firm was not, but should have been, certified in State A before obtaining certification in State B, State A treated the firm’s interstate application as if it were a brand new, first time application. The Department found that in so doing, State A did not comply with the interstate certification rule.  As a result, the Department remanded the matter to State A with instructions to follow the interstate certification rules found in 49 C.F.R. 26.85 to either certify the firm or specify a “good cause” reason as to why State B’s certification was erroneous or should not apply in State A.
• 15-0XX  – another case dealing with interstate certification, it also marks the first time the Department affirmed an interstate certification denial on the grounds that State A’s certification was “inconsistent with the Regulation.” The Department found that a certifier correctly interpreted the Regulation’s “good cause” grounds of “factually erroneous”” and “inconsistent with the Regulation” to deny interstate certification to a firm already certified in its home state (State A).  The “good cause” grounds in the Regulation are specific in nature and scope, and are commonly misapplied by certifiers.  This case provides substantial detail about the Department’s evaluation of interstate certification appeals dealing with “good cause” grounds.  

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Updated Modules & New Presentations

• Tripwires – firms seeking DBE certification often make the same errors during the application process.  The Department designed this presentation to help firms avoid these common mistakes and get certified faster.
• Updated presentations – Common Certification Misunderstandings, Interstate Certification, and Personal Net Worth.