How to Write and Enforce your DBE Program Intro; Planner Johnson Aviation was Program Manager for transfer of ownership of ONT from LAWA to OIAA That’s how I got involved in writing DBE Program. Summary of my experience writing a DBE Program for ONT. I have two stop points where you will have an opportunity to ask questions during the presentation. I may not have all the answers, but the slide at the end has contact info for people that do have all the answers: FAA. One caveat, this presentation will not teach you how to customize the FAA’s DBE template, but will highlight the important aspects of each subpart of the template, and I will dive into more detail on goal-setting. Dorota Skrzypek Johnson Aviation Consulting (www.jacair.com)

Timeline of Events – ONT Transfer Implementation Post-Transfer - 2017 Approved April, 2017 for three fiscal years CIP Program Grant Applications Expiring Entitlements FAA Part 139 Obligations Stand up Airport Departments Legal/Financial Obligations DBE Program Ontario International Airport Transfer - 2016 Timeline of Events – ONT Transfer Implementation Standup Departments – because management was at LAX not ONT. Expiring Entitlements – about $13 million; grant applications, CATEXs filed. Worked with Pat Wright (FAA Template); LAWA personnel (LAWA’s DBE Program). Programs have to be updated every three fiscal years.

Why you need a DBE Program You have received Federal financial assistance ($250,000+) from the Department of Transportation, and as a condition of receiving this assistance, you have signed an assurance that you will comply with 49 CFR Part 26. Your DBE Program Will: Ensure nondiscrimation in award and administration of contracts. Create a level playing field on which DBEs can compete fairly. Ensure DOTs DBE program is tailored in accordance with the law. Ensure only eligible firms participate as DBEs. Help remove barriers for DBEs. Promote use of DBEs in all types of contracts. Why you need a DBE Program - If you want grant funding, in excess of $250K, you need a DBE program.

Your Program Must Have the Following DBE Liason Officer (DBELO) Current program document and current three-year goals. Submitted Uniform Report by December 1, including shortfall analysis. Documented monitoring program including prompt payment and retainage Your Program Must Have the Following 4 basic components. DBE Liason Officer – identified on your org chart, direct access to CEO. Three-year goal – FAA wants to know what real projects are coming down the pipeline. Uniform report – shows FAA whether you’ve met your goal or not. FAA wants to see that you are monitoring and documenting your program.

DBE Guidance & Sample Program: https://www. faa DBE Guidance & Sample Program: https://www.faa.gov/about/office_org/headquarters_offices/acr/b us_ent_program/dbe_program_adm/ Link to Civil Rights Connect (Annual Uniform Report Submission): https://faa.civilrightsconnect.com/FAA/login.asp Link to ONT DBE Program: https://www.flyontario.com/corporate/business- opportunities/dbe-program Link to State of CA DBE Directory: http://www.dot.ca.gov/hq/bep/find_certified.htm Census Bureau: https://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml DBE Links These are the links that I found most useful when I was putting together ONT’s DBE Program. FAA Sample Program. Connect – for uniform report submission Sample ONT program – very helpful in case you are confused by the template. CA DBE directory to see how many companies are certified as DBE firms in certain type of work categories related to NAICS codes. Census bureau to identity how many overall companies exist in a work category in a specific county.

What are you pledging in your DBE Program? - Now we’re going to get into writing the program.

Transmit to FAA annually on December 1, the “Uniform Report of DBE Awards or Commitments and Payments” form. Maintain a bidders list (ONT is doing this via Planet Bids). Provide data on DBE and non-DBE contractors and subcontractors seeking to work at your airport. Ensure that the following clause is included in each contract and subcontract: The contractor or subcontractor shall not discriminate 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 CFR 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 OIAA deems appropriate. Subpart A - General When you download the FAA Template, it is organized in subparts. Bidders lists – knowing and tracking who is bidding on your projects. Contractors may ask you for bidder’s list for teaming purposes. Clauses are clearly laid out in template.

Subpart B – Administrative Requirements DBELO – must have direct access to CEO (shown on organization chart) Include the following clause in each DOT-assisted prime contract: The prime contractor agrees to pay each subcontractor under this prime contract for satisfactory performance of its contract no later than 30 days from the receipt of each payment the prime contractor receives from The OIAA. Any delay or postponement of payment from the above referenced timeframe may occur only for good cause following written approval of the OIAA. This clause applies to both DBE and non-DBE subcontractors. Monitoring & Enforcement Mechanisms (more on this later). Subpart B – Administrative Requirements

What is this? - Question break point.

Subpart C – Goals & Good Faith Efforts Goal is set for three-year federal fiscal year period. If the Uniform Report at the end of any fiscal year shows that an overall goal was not met, the airport sponsor will analyze reasons for shortfall, and establish corrective action to FAA for approval. Goal will either be race-conscious, race-neutral, or combination. Race-conscious means a set goal in a contract. Race-neutral means no contract goal, but DBE participation is anticipated. The obligation of a prime contractor is to make good faith efforts. The prime contractor can demonstrate that it has done so either by meeting the contract goal or documenting good faith efforts. Subpart C – Goals & Good Faith Efforts Race-neutral, no contract goal, but anticipated because of your research or your outreach effortrs. Prime contractor, just like you, is obligated to show good faith efforts in meeting your stated goal. For example, you may state a goal, contractor may pledge less, but show why their efforts resulted in a lower goal. TWY SW example. – low bid did not meet goal.

Attachment 5 – Overall Goal Calculation Three-Year CIP Attachment 5 – Overall Goal Calculation There’s actually 10 attachments to your DBE program. What I’m going to cover are the most labor intensive attachments. Goal calculation starts with your three year CIP. What are your most urgent projects?

Attachment 5 – Overall Goal Calculation Market Area Attachment 5 – Overall Goal Calculation FAA will likely tell you that you have to reach out beyond just your county. Be realistic with your market area.

Attachment 5 – Overall Goal Calculation Actual Availability of DBEs Attachment 5 – Overall Goal Calculation How many DBE firms are certified in your market area? Look at your projects; for every project you need to break down the types of contractors that will bid on your projects (NAICS codes). First, go to census bureau to find out how many total companies do that type of work in your market area. Then, you will go to the CA DBE directory to find out how many firms are actually registered as DBEs that do a certain type of work - companies can be located in a different state, but still be registered as a DBE in your county.

Attachment 5 – Overall Goal Calculation DBE Availability (Weighted Dollars) divided by Total Project Costs = Anticipated DBE Participation (Overall Goal) Attachment 5 – Overall Goal Calculation Go back to your CIP Program. Think about the types of contractors that will be needed to complete the project. Look at your DBE availability that you previously calculated to understand how much money can potentially go to DBE’s. How much money will projects costs; how much of that can go to DBE’s; equals your goal. That’s how we arrived at a 13% overall goal for ONT.

Is this airline still around?

Subpart D – Certification Standards A company must be registered as a DBE in order for the airport sponsor to count their participation towards the overall goal. Subpart D – Certification Standards This is where easily accessible information about your program and outreach is key. A lot of small companies don’t know how to become DBE certified, and you need to tell them how. This is a snapshot from ONT’s website.

Subpart F – Compliance & Enforcement Ensure that work committed to DBEs is performed by the DBEs by: Reviewing contracting records and monitoring work sites (keep written record). Requiring prime contractors to maintain records and documents of payments to DBEs for three years. This requirement also extends to any DBE subcontractor. Performing interim audits of contract payments to DBEs. Ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the contract. Subpart F – Compliance & Enforcement It’s not just about having a program, but enforcing that program. You are pledging in your DBE program that you WILL monitor and enforce. You need to keep a papertrail. Have a standard forms for performing on-site audits, contract audits, invoice audits. Important for your end-of-year shortfall analysis, if you have one.

Attachment 7 – DBE Monitoring and Enforcement The airport sponsor has available several remedies to enforce the DBE requirements contained in its contracts, including, but not limited to, the following: Breach of contract action, pursuant to the terms of the contract; Breach of contract action, pursuant to California Civil Code, Article 1. Damages for Breach of Contract 3300.-3322. In addition, the Federal government has available several enforcement mechanisms that it may apply to firms participating in the DBE problem, including, but not limited to, the following: Suspension or debarment proceedings pursuant to 49 CFR Part 26 Enforcement action pursuant to 49 CFR Part 31 Prosecution pursuant to 18 USC 1001. Attachment 7 – DBE Monitoring and Enforcement This kind of goes into the dark side of the law. But you can, as an airport sponsor using grant funding stop payment and even prosecute. Now the reality, is that you need to be having talks with your contractor and sending strong-worded letters. TWY SW example.

Attachment 10 - Small Business Program For non-AIP funded contracts, the airport sponsor will establish a small business participation goal. “The OIAA will review each Request for Bid/Request for Proposal (project) estimated to be in excess of $150,000 to determine whether a mandatory SBE participation level should be set on the project.” If there can be small business participation, set a contract goal. Attachment 10 - Small Business Program non-AIP, like on-call planning, or IT master plan. If you know that there are small businesses in your area, set a goal.

Northern California: Ofelia Medina 310-725-3945 Ofelia.medina@faa.gov Southern California: Thomas Knox 310-725-3942 Thomas.knox@faa.gov Nevada: Sonia Cruz 310-725-3940 Sonia.cruz@faa.gov Dorota Skrzypek 310-962-2631 dorota@jacair.com Contact Info