The language in the “Special Provisions for DBE Contracts” is amended and the reference to the Code of Federal Regulations is updated in order to incorporate the 2008 edition of 49 C.F.R. Part 26. Finally, a reference to 72 Federal Register No. 62 ...

DEPARTMENT OF TRANSPORTATION

RULE NO: RULE TITLE
14-78.005: Participation by Disadvantaged Business Enterprises
PURPOSE AND EFFECT: The language in the “Special Provisions for DBE Contracts” is amended and the reference to the Code of Federal Regulations is updated in order to incorporate the 2008 edition of 49 C.F.R. Part 26. Finally, a reference to 72 Federal Register No. 62 is added for informational purposes.
SUMMARY: The language in the “Special Provisions for DBE Contracts” is amended and the reference to the Code of Federal regulations is updated.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: No Statement of Estimated Regulatory Cost was prepared.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
SPECIFIC AUTHORITY: 337.125, 337.137, 339.0805 FS.
LAW IMPLEMENTED: 337.125, 337.137, 339.0805 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: James C. Myers, Clerk of Agency Proceedings, Florida Department of Transportation, Office of the General Counsel, 605 Suwannee Street, Mail Station 58, Tallahassee, Florida 32399-0458

THE FULL TEXT OF THE PROPOSED RULE IS:

14-78.005 Participation by Disadvantaged Business Enterprises.

(1) The major purpose of the Disadvantaged Business Enterprise (DBE) Program is to assure nondiscrimination and DBE utilization in road and bridge construction and maintenance projects. Contractors are required to comply with the following special provision contained in all road and bridge contracts:

 

Special Provision for DBE Contracts

General. Prior to award of the contract, have an approved DBE Affirmative Action Program Plan filed with the Equal Opportunity Office. Update and resubmit the plan every three years. No contract will be awarded until the Department approves the Plan. The DBE Affirmative Action Program Plan and commitment to carry out the Plan must be incorporated into and become part of the awarded contract.  Per 49 C.F.R. 26.13(b) each Contract FDOT signs with a Contractor (and each subcontract the prime contractor signs with a subcontractor) must include the following assurance: “The Contractor, sub-recipient or subcontractor shall not discrimiate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of 49 C.F.R. Part 26 in the award and administration of DOT-assisted Contracts.  Failure by the Contractor to carry out these requirements is a material breach of this Contract, which may result in the termination of this Contract or such other remedy as the recipient deems appropriate.” Failure to keep these commitments will be deemed noncompliance with these specifications and a breach of the contract.  Take all necessary and reasonable steps to ensure that Disadvantaged Business Enterprises, as defined in 49 C.F.R. Part 26, have the opportunity to participate in, compete for, and perform subcontracts. Do not discriminate on the basis of age, race, color, religion, national origin, sex, or disability in the award and performance of this contract.

Plan Requirements. Include the following in the DBE Affirmative Action Program Plan:

A policy statement, expressing a commitment to use DBEs in all aspects of contracting to the maximum extent feasible. The policy making body must issue a policy statement signed by the chairperson, which expresses its commitment to utilize DBEs, outlines the various levels of responsibility, and states the objectives of the program. Circulate the policy statement throughout the Contractor’s organization.

The designation of a Liaison Officer with the contractor’s organization, as well as support staff, necessary and proper to administer the program, and a description of the authority, responsibility, and duties of the Liaison Officer and support staff. The Liaison Officer and staff are responsible for developing, managing, and implementing the program on a day-to-day basis for carrying out technical assistance activities for DBEs and for disseminating information on available business opportunities so that the DBEs are provided an equitable opportunity to participate in contracts let by the Department. Use techniques to facilitate DBE participation in contracting activities which include:

1. Soliciting price quotations and arranging a time for the review of plans, quantities, specifications, and delivery schedules, and for the preparation and presentation of quotations.

2. Providing assistance to DBEs in overcoming barriers such as the inability to obtain bonding, financing, or technical assistance.

3. Carrying out information and communication programs or workshops on contracting procedures and specific contracting opportunities in a timely manner, with such programs being bilingual, where appropriate.

4. Encouraging eligible DBEs to apply for certification.

5. Contacting Minority Contractor Associations and city and county agencies with programs for disadvantaged individuals for assistance in recruiting and encouraging eligible DBE contractors to apply for certification with the Department.

DBE Records and Reports. Submit the Anticipated DBE Participation Statement at or before the Pre-construction Conference. Report monthly, through the Equal Opportunity Reporting System, manually or on the Department’s website, actual payments, retainage of all DBE and Minority Business Enterprise (MBE) subcontractors and DBE and MBE construction material, minority status, and work type of all subcontractors and major suppliers. The Equal Opportunity Office will provide instructions on accessing this system. Develop a record keeping system to monitor DBE affirmative action efforts which include the following:

1. The procedures adopted to comply with these specifications;

2. The number of subordinated contracts on Department projects awarded to DBEs;

3. The dollar value of the contracts awarded to DBEs;

4. The percentage of the dollar value of all subordinated contracts awarded to DBEs as a percentage of the total contract amount.

5. A description of the general categories of contracts awarded to DBEs; and

6. The specific efforts employed to identify and award contracts to DBEs.

Upon request, provide the records to the Department for review.

All such records are required to be maintained for a period of five years following acceptance of final payment and available for inspection by the Department and the Federal Highway Administration.

(2) 49 C.F.R. Part 26 (10-1-0803 Edition) is incorporated herein by reference and adopted by the Department for participation by disadvantaged business enterprises in the Department’s federally funded projects. The provisions of 64 Federal Register No. 21, February 2, 1999, and 68 Federal Register No. 115, June 16, 2003, and 72 Fed. Register No. 62, April 2, 2007 are available from the Department for informational purposes only. They also can be obtained on the Internet at http://www.gpoaccess.gov/fr/index.html.

Specific Authority 337.125, 337.137, 339.0805 FS. Law Implemented 337.125, 337.137, 339.0805 FS. History–New 12-9-81, Amended 5-23-84, Formerly 14-78.05, Amended 9-21-87, 5-4-88, 6-24-91, 12-2-93, 4-30-96, 8-31-04,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Arthur Wright, Manager, Equal Opportunity Office
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Stephanie C. Kopelousos, Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 27, 2009
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 19, 2008