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Why did the San Francisco Municipal Transportation Agency (SFMTA) discontinue setting Disadvantaged Business Enterprise (DBE) goals on its contracts funded by the Federal Transit Agency (FTA)?
On May 9, 2005, the United States Court of Appeals for the Ninth Circuit issued a decision in Western States Paving Co. vs. Washington State Department of Transportation, et al. (9th Cir. 2005) 407 F.3d 983. The court upheld the U.S. Department of Transportation's (DOT) DBE regulations on their face; however, the court struck down the Washington Department of Transportation's (WSDOT) DBE program as unconstitutional. The court held that WSDOT's DBE program was not narrowly tailored because it was not based on evidence of discrimination in the Washington State marketplace. The court also suggested that a remedial program, such as the DBE program, is only narrowly tailored if it is limited to those minority groups that have actually suffered discrimination.
Specifically, the court noted that WSDOT had not conducted adequate statistical studies to establish the existence of discrimination in the highway contracting industry. Further, the court found that WSDOT's calculation of the capacity of DBEs to do work was flawed because it failed to take into account the effects of past race-conscious programs on current DBE participation. According to the court, the disparity between DBE participation on contracts with and without race-conscious goals did not provide any evidence of on-going discrimination. Finally, the court noted that WSDOT did not present any anecdotal evidence of discrimination. Since this decision was issued by the U.S. Court of Appeals for the Ninth Circuit, it applies to all states comprising the Ninth Circuit, including California.
In response to the Western States Paving decision, on March 23, 2006, DOT issued guidance concerning the federal DBE program that applies to grant recipients, such as SFMTA, in states within the Ninth Circuit,. This guidance provides that if a recipient does not currently have sufficient evidence of discrimination or its effects, then the recipient must meet its annual overall DBE goal solely through race-neutral measures. Until the SFMTA has sufficient evidence of discrimination or its effects to justify submission of race-conscious goals, the SFMTA will use race-neutral measures to achieve its DBE goal.
What is the SBE Program?
To achieve its annual goal, the SFMTA has implemented a Small Business Enterprise (SBE) program for its contracts that are funded by the Federal Transit Administration, an operating administration of DOT. The purpose of this SBE program is to encourage greater participation by small business firms in public contracting.
How can I participate in the SBE Programs?
Small business firms may qualify for this program by enrollment in either the State of California's Small Business Program, the federal Disadvantaged Business Enterprise (DBE) program, or the San Francisco's Local Business Enterprise (LBE) program. Please refer to the Small Business (SBE) Programs page.
How can I get my business certified as a DBE?
A firm can become a DBE through the California Unified Certification Program (CUCP). SFMTA, which is a certifying agency for the CUCP, performs a comprehensive review and analysis of applications to determine the ownership and control of firms that apply for DBE certification. Applicants must meet the eligibility criteria set forth in the federal regulations at 49 CFR Part 26 in order to attain DBE certification.
Applications are carefully reviewed by the Contract Compliance Office to confirm that all required documents have been submitted. To see the list of documents that must be submitted in support of a certification application, go to http://www.caltrans.ca.gov/hq/bep/business_forms.htm to obtain a CUCP DBE Certification Application. An on-site visit is conducted for all applications…
What are the advantages of becoming certified as an SBE or DBE?
Becoming certified as an SBE will expose your firm to work opportunities on SFMTA FTA-assisted projects. Becoming certified as a DBE will offer your firm opportunities to participate on Federal Highway Administration (FHWA-) assisted contracts. When responding to a solicitation, contractors must provide evidence that they meet the SBE participation goals on FTA-funded projects or that they meet the DBE participation goals established on FHWA-funded projects by seeking out and utilizing certified SBE or DBE firms. A contractor can only receive credit toward achievement of such goals if the firm is certified as an SBE or DBE.
Note: DBE certification can open opportunities to work on DOT-assisted transportation projects with agencies other then SFMTA.
Will obtaining a certification assure me of getting contracts and subcontracts?
No. Certification does not guarantee work to any certified firm. Although certification enhances a firm's exposure to prime contractors and the business community, the firm still must market itself, its personnel and its services.
How are SBE/DBE participation goals established for specific contracts?
SFMTA sets goals on contracts that have subcontracting opportunities; thus, not every contract will have a goal. Some of the factors that are taken into consideration when setting a goal include, but are not limited to, the type of work involved, potential subcontracting items and availability of SBE or DBE firms.
Where can I find information regarding SFMTA procurement opportunities?
Does the general contractor have any responsibility in the SBE/DBE Programs?
Yes. The contractor must first attempt to meet the SBE or DBE participation goal established on the contract by seeking out and utilizing certified SBE or DBE firms. Once work begins, the contractor is responsible for all project work, including those of its subcontractors. Contractors must
How can suspected abuse of the SBE/DBE Programs be reported?
Suspected abuse should be reported to the SFMTA Contract Compliance Office at 415.701.4362. Written reports of suspected abuse may be submitted to: Contract Compliance Office, SFMTA, One South Van Ness Avenue, 6th Floor, San Francisco, CA 94103.
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