AASHTO Journal - USDOT Offers Guidance on New DBE/ACDBE Rule

The General Counsel of the U.S. Department of Transportation recently issued a Frequently Asked Questions or FAQ guidance document about the Interim Final Rule governing the agency’s Disadvantaged Business Enterprise (DBE) and Airport Concession Disadvantaged Business Enterprise (ACDBE) programs – a rule that became effective on October 3.

[Above photo by AASHTO]

The new rule removes race- and sex-based presumptions of social and economic disadvantage from DBE eligibility and all individuals seeking DBE certification must now instead provide “individualized evidence” of both social and economic disadvantage based on their own circumstances and experiences, the new interim rule states.

Spanning nearly 40 years, USDOT’s DBE and ACDBE programs are small business initiatives intended to level the playing field for businesses seeking to participate in federally assisted contracts and in airport concessions.

In light of USDOT and the U.S. Department of Justice’s determination – based on several federal court decisions decided within the past year – that the DBE program’s race- and sex-based presumptions are unconstitutional, USDOT developed and issued the new interim final rule to remove those presumptions.

The new rule also requires each Unified Certification Program to reevaluate any currently certified DBE or ACDBE, to recertify any DBE or ACDBE that meets the new certification standards, and to decertify any DBE or ACDBE that does not meet the new certification standards.