Opening DOORS Program Indianapolis, IN September 25, 2012

Second NPRM on DBE Sent to Federal Register August 22 nd Published September 6, 2012 Comment period ends November 5, Docket number-OST

Highlights New forms Definitions DBE program requirements (who must have one) Goal setting TVMs Good faith efforts Counting DBE participation Certification—not covered during this session! 3

New Forms Revised application form (removes old SBA- DOT MOU language) Revised semi-annual report: – Track on-going payments – Track women, minority women, minorities 4

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Definitions Eight new definitions: – Assets – Business, business concern or business enterprise – Contingent liability – Days – Immediate family member – Liabilities – Non-disadvantaged individual – Principal place of business – Transit Vehicle Manufacturer 6

DBE Program Makes clear that recipient must have a DBE program if it receives $250K in planning, capital, or operating assistance in a fiscal year. Cannot exclude prime contracts below $250K from the threshold Proposes to not allow sub-recipients to have their own program—must operate under the direct recipient’s DBE program 7

Goal Setting Would allow use of bidders’ list to determine relative availability of DBEs, but only if well documented and supported. Proposes to disallow use of pre-qualified contractors list to establish availability. Proposes to not allow step two adjustments- especially a downward adjust of the availability— unless it is clearly warranted. Makes clear that FTA, FHWA or FAA can adjust an improperly determined goal. 8

Goal Setting Cont. Proposes to allow goals for entire project or just the Federal share. Proposes to eliminate the public comment period and allow publication on website only. Proposes to require stronger consultation efforts before setting goal. 9

TVMs Proposes to prohibit TVMS from selectively determining which contracting opportunities are available to DBEs Proposes to prohibit transit agencies from issuing overly proscriptive vehicle procurements, which diminishes competition in violation of 49 U.S.C. 5325(h) Proposes to prohibit using entire federal share as base figure for DBE goal 10

TVMs cont. Proposes to require reporting even when there is no activity Proposes to make clear that post-award DBE requirements need not be followed when or reported in those years where TVM has not been awarded a contract or is not performing on a contract. 11

Good Faith Efforts Proposes to remove “responsive/responsible” language. Proposes to have Bidders submit all DBE info at time of bid (except in negotiated procurements) Proposes to require copies of DBE and non- DBE quotes received when non-DBE was chosen over DBE because of price 12

Good Faith Efforts cont. Proposes to options for when GFE documents have to be submitted: – At time of original bid – One day after winning the bid A promise by a prime contractor bidder to include DBEs after the award is not evidence of GFE 13

Good Faith Efforts Cont. Proposes new contract clause that work committed by prime to specific DBE must be performed by that DBE (unless the recipient approves)--or prime cannot be paid for that work Proposes a clear process for replacing a DBE during contract performance Proposes new contract clause that failure to comply with DBE regulations is a material breach of the contract, resulting in various sanctions Proposes to require prime contractor to provide all subcontracts for all DBEs at all levels. 14

Good Faith Efforts Cont. Proposes to strengthen requirements of recipients when evaluating good faith efforts of contractor failing to meet goal Review other bids to determine if higher bids met the goal Review and compare bids of DBE and non- DBE when non-DBE was chosen due to price No objective checklists 15

Counting DBE Participation Proposes to allow DBEs to lease trucks from non-DBE leasing firm without any loss of credit. Counting must be done on a case-by-case basis—regardless of certification Asks for comment regarding “regular dealer” concept. Is a DBE regular dealer just a “middleman”? 16

Certification Highlights Gross Receipts Cap from $22.41 to $23.98M – inflationary adjustment Ownership Control Prequalification Certification decisions Denials of initial requests for certification Removal of eligibility Suspension of certification 17

Federal Transit Administration