DBE Subconsultant Requirements
DBE Subconsultant Requirements
This tab discusses the various requirement you may encounter when seeking work with ADOT as a DBE subconsultant. The sections below only discuss DBEs in the context of proposing as a DBE Subconsultant. For a fuller picture of how proposing works with DBEs, see the prime consultant section on contracts with DBE Requirements.
The Disadvantaged Business Enterprise (DBE) Program exists to create a level playing field on which DBEs can compete fairly for transportation contracts. The Program requires ADOT to set DBE contract goals if it determines that it cannot meet its overall goal for DBE participation in other ways.
In essence, a DBE contract goal is a requirement that a certain percentage of work for the project be performed by certified DBEs. When counting DBE participation, the DBE must be certified in the category of work it performs in order for that work to count towards DBE participation. Further, only the value of work actually performed by the DBE counts toward DBE participation, and it is only counted after the work has been paid for.
More information on the ADOT DBE policy and how it is implemented can be found in the BECO section of the ADOT website.
The specific clauses of a contract with ADOT which deal with DBE goals and requirements can be viewed in the BECO section of the ADOT website:
Commercially Useful Function
It is important to note that DBE involvement only satisfies DBE goals if the DBE serves a commercially useful function. Generally, this means that the DBE must perform the whole of a task itself and the task must be necessary for the completion of the project. The specific rules vary by the task being performed, however.
A DBE will not be considered to perform a commercially useful function if it acts only as an extra participant in a transaction or projects to provide the appearance of DBE participation. If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract with its own work force, or if the DBE subcontracts a greater portion of the work of a contract than would be expected on the basis of normal industry practice for the type of work involved, ADOT will presume that the DBE is not performing a commercially useful function.
When a DBE is presumed not to be performing a commercially useful function as provided above, the DBE may present evidence to rebut this presumption. Decisions on commercially useful function matters are subject to review by FHWA, but are not administratively appealable to U.S. DOT.
See this video from the FHWA for more information on what qualifies as a Commercially Useful Function.
For more information on good faith efforts, as well as information on what sort of work satisfies the commercially useful function requirement of DBE goals, see the Commercially Useful Function Checklist in the BECO section of the ADOT website.
DBE Goal Credit
In some cases, not all of the money paid to a DBE can count toward the DBE goal.
A DBE subconsultant may enter into second-tier subcontracts that are consistent with normal industry practices. However, items that are second-tier subcontracted by a certified DBE subcontractor will not be counted toward the participation goal unless the work is subcontracted to another certified DBE.
Good Faith Efforts
Sometimes a proposer may not be able to find certified DBEs to meet a contract goal no matter how hard they try. It is acceptable to not to meet a DBE contract goal so long as the proposer can demonstrate it has made a good faith effort to do so. That is, the proposer has taken all reasonable steps to find certified DBEs for the contract but still has not been able to meet the contract goal.
Good faith efforts requirements exist to ensure that prime contractors take DBE goals seriously and make a real effort to satisfy them. If the prime consultant is unable to meet the DBE goal on a contract or fails to make a good faith effort to meet the DBE goal, as determined by ADOT, the prime consultant will not be awarded the contract.
DBE Commitment Affidavits
DBE Commitment Affidavits must be signed and submitted to ADOT. The form can be found in the Engineering Consultants section of the ADOT website.