Disadvantaged Business Enterprise (DBE)
Good Faith Efforts Process
When ODOT has established a DBE contract goal, ODOT awards the project/contract only to a consultant/bidder who makes responsible Good Faith Efforts (GFEs) to meet or exceed the goal. ODOT determines that a consultant/bidder has made GFEs if the consultant/bidder does either of the following, as per 49 CFR 26.53:
- Documents that it has obtained enough DBE participation to meet the goal; or
- Documents that it made adequate GFEs to meet the goal even though it did not succeed in obtaining enough DBE participation to do so. If the consultant/bidder does document adequate GFEs, ODOT will not deny award of the project/contract on the basis that the consultant/bidder failed to meet the goal.
In the solicitations for DOT-assisted projects/contracts for which a goal has been established, award of the project/contract will be conditioned on meeting the requirements of this section. Allconsultants/bidders are required to submit the appropriate DBE Form 6, Confirmation of Intent to Subcontract Federal-Aid Project at the following time:
Consultants are required to submit the DBE Form 6 (Consultant) after negotiation.
Construction (Bid Opening)
Bidders are required to upload the DBE's quote and DBE Form 6 (Construction) at the time of bid in Bid X. The DBE's quote should include at a minimum:
A full description of the contract work that each DBE will perform; and
The dollar amount of the participation of each DBE firm that is supported by the DBE bid. Each item description, quantity, price, amount, and total must be mathematically reflected and equal to the total participation amount identified in your bid documents.
The DBE's quote will be the governing amount if the amount entered in Bid X and/or the DBE Form 6 amounts are different.
If the project/contract goal cannot be met, evidence of GFEs are to be submitted on the appropriate DBE Form 5 at the following time:
Instead of the required DBE statement on letterhead, the DBE Form 5 must be included with your firm’s Letter of Intent (LOI).
Construction (Bid Opening)
The DBE Form 5 is to be uploaded into Bid X.
If at any time the DBE goal on the project/contract cannot be met, the prime consultant/contractor is required to seek all opportunities where DBE firms can be utilized. If additional DBE participation is not obtainable, the appropriate DBE Form 5 along with justification and evidence of GFEs is required and must be approved by the CRD.
ODOT's Good Faith Determination Process
ODOT verifies that all information is complete and accurate and adequately documents the consultant’s/bidder’s GFEs.
As per 49 CFR Part 26, Appendix A, the following is a list of types of actions, which can be considered as part of the consultant’s/bidder’s GFEs to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive.
- Solicit through all reasonable and available means the interest of all certified DBEs that have the capability to perform the work of the project/contract. This may include attendance at pre-bid and business match-making meetings and events, advertising and/or written notices, posting of Notices of Sources Sought and/or Request for Proposals, and written notices to all DBEs listed in ODOT’s DBE Directory.
- The consultant/bidder should solicit this interest as early in the acquisition process as practicable to allow the DBEs to respond to the solicitation and submit a timely offer for the subcontract. The consultant/bidder should determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations.
- Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved.
- Providing interested DBEs with adequate information about the plans, specifications, and requirements of the project/contract in a timely manner.
- Negotiating in good faith with interested DBEs. Incur reasonable additional costs to obtain DBE Participation. Price alone is not a sufficient reason to reject a DBE. The bidder/consultant must demonstrate that the cost is excessive and unreasonable. Reasonableness is evaluated not only in terms of the dollar and percentage difference from one bidder to another, but also in light of the percentage of the total contract.
- As necessary, revise the DBE participation plan in order to obtain DBE participation. In the event the consultant/bidder is unable to obtain DBE participation under the original plan or is receiving DBE quotes in other areas, it should consider revising the plan, unbundling and forgoing self-performance or portions of the contract.
- Provide assistance to DBEs. Assistance may include providing the DBE help to understand technical and contract requirements of the project, obtain bonds and insurance for the project, and connect with others in the industry to obtain supplies, equipment or other materials for the project. The bidder should be careful not to compromise the independence or potential Commercially Useful Function (CUF) of the DBE, therefore in no instances should bidders arrange supply purchases, negotiate on behalf of a DBE, lend equipment to DBEs, or directly pay DBE employees.
If ODOT determines that the apparent successful consultant/bidder has failed to meet the requirements, prior to awarding the project/contract, ODOT will provide the consultant/bidder an opportunity for administrative reconsideration.