Biden-Harris Administration, USDOT Propose Improvements to Disadvantaged Business Enterprise Program and Airport Concession Disadvantaged Business Enterprise Program Regulations

Critical Updates Would Further Level the Playing Field for Small and Disadvantaged Businesses to Compete for Federally Assisted Contracts   

As part of the Federal government’s commitment to advancing equity and ensuring access to contracting opportunities, the Biden-Harris Administration and the U.S. Department of Transportation (USDOT) issued a Notice of Proposed Rulemaking (NPRM) to modernize the Disadvantaged Business Enterprise (DBE) and Airport Concession DBE (ACDBE) program regulations. Spanning nearly 40 years and mandated by Congress, the DBE and ACDBE programs are intended to prevent discrimination, and remedy the continuing effects of past discrimination, against small businesses owned and controlled by disadvantaged individuals. 

By modernizing the existing regulations, the NPRM proposed today would help further level the playing field for small, disadvantaged businesses seeking to compete for federally assisted aviation, highway, and transit contracts as well as airport concession opportunities. These changes are coming at a critically important time as small businesses will play an essential role in helping to build infrastructure made possible by the President’s Bipartisan Infrastructure Law. 

“For far too long, small and disadvantaged businesses have faced discrimination that costs them economic opportunities,” said U.S. Transportation Secretary Pete Buttigieg. “These critical updates would help ensure that small and disadvantaged businesses continue to have a fair chance to compete for federally assisted contracts.” 

USDOT’s Departmental Office of Civil Rights and counterparts at the Federal Aviation Administration, Federal Highway Administration, and Federal Transit Administration carefully crafted these proposed changes after considering feedback from a broad range of stakeholders and conducting internal research following the ACDBE program regulation updates in 2012 and the DBE program regulation updates in 2014. 

Some of the proposed updates to the DBE and ACDBE program regulations include: 

• Increasing the personal net worth (PNW) limit from $1.32 million to $1.6 million and excluding retirement assets from PNW calculations 
• Amending overly prescriptive ownership and control certification eligibility requirements  
• Simplifying the interstate certification process  
• Formally adopting COVID-19 flexibilities such as virtual on-site visits  
• Reducing reporting requirements for some Federal Transit Administration funding recipients  
• Empowering certified firms to better market themselves to prime contractors via expanded State directories  
• Helping more small businesses participate in Federal Aviation Administration-assisted airport projects by requiring airports to proactively remove obstacles and adopt more race-neutral strategies  
• Strengthening prompt payment monitoring and oversight requirements to help ensure that DBEs in all subcontracting tiers are promptly paid  

A summary of the NPRM can be accessed here.   

DOT invites comments to the NPRM from all interested parties, including funding recipients and project sponsors, firms participating or seeking to participate in USDOT assisted contracts, and the prime contracting community at large. Written comments to the Federal Register must be submitted using this link by September 19, 2022. We will be hosting multiple public meetings beginning July 27, 2022. Sign up for the GovDelivery DBE listserv to receive updates throughout the notice and comment period, view the DBE/ACDBE NPRM Webpage to learn more about the rulemaking process, public meetings, and other information about the NPRM.