DBE Complaint Investigations & Compliance Reviews 2009 National DBE Conference FAA Office of Civil Rights “We are wh

1. DBE Complaint Investigations & Compliance Reviews2009 National DBE ConferenceFAA Office of Civil Rights“We are who we serve”

2. Overview of the DBE Program • Airport Improvement Program • Grant Assurances • Complaint Investigations • Complaints Against Airports • DBE and ACDBE Compliance Reviews

3. Airport Improvement Program (AIP) • FAA distributes about $3.4 billion annually in AIP grants to help finance airport construction projects. • 3,300 airports are eligible for AIP grants for airport planning & development.

4. Grant Agreement with Airport • The written Grant Assurances require a DBE Program and goal and incorporates it by reference into the Grant Agreement. • It is a legal obligation under the Grant Agreement.

5. AIP Grant Assurances-Obligations • By accepting a Federal airport development grant, an airport sponsor agrees to, in part: • Prohibition of exclusive rights • Availability of fair and reasonable terms without unjust discrimination • Compliance with civil rights requirements • Disadvantaged Business Enterprise (DBE) Program

6. Airport Sponsor Responsibilities • Abide by Grant award assurances • Include required non-discrimination clauses in contracts • Public participation requirements • Ensure that all segments of the community are notified of public hearings on proposed airport actions pertaining to the DBE and ACDBE programs.

7. Airport Sponsor Responsibilities continued - • Ensure DBE and ACDBE goal consultations/ meetings and public notices are accomplished • The consultation should include, but not necessarily be limited to, minority, women's and general contractor groups, community organizations, and other officials or organizations.

8. NondiscriminationAirport Sponsor Responsibilities continued - • Types of goal announcement consultations may include • State or local government informational Meetings • Public Meetings • Pre-bid Meetings • Telephone Surveys • Mail or email surveys

9. DBE and ACDBE Complaint Investigations Regulation Authorities

10. § 26.7   What discriminatory actions in the DBE Program are forbidden? • You must never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by this part on the basis of race, color, sex, or national origin.

11. § 23.9 ACDBE Program Nondiscrimination (a) As a recipient, you must meet the non-discrimination requirements provided in part 26, §26.7 with respect to the award and performance of any concession agreement, management contract or subcontract, purchase or lease agreement, or other agreement covered by this subpart.

12. 14 CFR Part 16-Rules of Practice for Federally Assisted Airport Enforcement Proceedings • § 16.23 • (a) A person directly and substantially affected by any alleged noncompliance may file a complaint with the Administrator. A person doing business with an airport and paying fees or rentals to the airport shall be considered directly and substantially affected by alleged revenue diversion as defined in 49 U.S.C. 47107(b).

13. DBE and ACDBE Complaint Investigations • FAA may initiate its own investigation of DBE Plan violations under 49 CFR Part 16, Subpart D. • http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=6675c3b4a4151dbf7a5389af3d572090&rgn=div8&view=text&node=14:1.0.1.2.7.3.11.2&idno=14

14. Time Limits – DBE Complaints • The complaint must be filed no later than 180 days after the date of the alleged discriminatory act or if the discrimination is ongoing, the date the conduct was disclosed.

15. Filing a Civil Rights Complaint Airport Sponsors must: • Notify FAA of a DBE or ACDBE complaint within 15 days • Send complaint to: • Applicable Regional FAA Civil Rights Office, or • National FAA Civil Rights Office

16. FAA Office of Civil Rights DBE Complaints Processing • Determine jurisdiction • Forward to appropriate jurisdiction if required • Determine if airport is in compliance with the regulations in question • Work to resolve • Work to improve conditions • Continue to monitor airport to ensure compliance

17. Complaints against airlines/air carriers Refer all complaints having allegations specifically against airlines/air carriers to: Aviation Consumer Protection Division, C-75 U.S. Department of Transportation 1200 New Jersey Ave, S.E. Washington, D.C. 20590 202-366-2220 (TTY 202-366-0511) http://airconsumer.ost.dot.gov//

18. REVIEWS DBE COMPLIANCE

19. What is a DBE Compliance Review? • A compliance review is a review by the FAA to determine if an airport recipient is correctly implementing the requirements of the DBE program regulations in 49 CFR parts 23 and 26.

20. Program Responsibility • FAA may review a recipient’s compliance with the DBE program at anytime (49 CFR 26.105). • Airport recipients of AIP funds are required to comply with all requirements of Parts 26 and 23 of the DBE regulations. • Airport sponsors who fail to comply with any requirement will be subject to enforcement actions under section 26.105, or appropriate program sanctions such as suspension or termination of Federal funds, or delayed approval of funds until the deficiency is corrected.

21. Preparing for a compliance review: Airport Self -Assessment • The DBE and ACDBE regulations • Your DBE and ACDBE Program • Actual implementation at your Airport

22. Examples of Review AreasBasic DBE Program Requirements • An approved DBE program by the FAA • DBE policy statement & distribution • DBE Liaison Officer (DBELO) and adequate staff to administer program

23. Examples of Review AreasBasic DBE program requirements • Goal setting process • Race neutral and race conscious efforts

24. Examples of Review Areas Procurement process--Pre-award • Contract assurances and clauses • No co-mingling with local programs • Good faith efforts • Counting DBE Participation

25. Examples of Review AreasProcurement Process—Post Award • Monitoring Mechanisms in DBE program • Monitoring Actual Work by DBEs • Monitoring Attainments • Prompt Payment and Retain age Mechanisms

26. Scope of a Compliance Review • Desk Audit – review of the DBE program plans achievement reports, and other documents. • On-site Visit – review selected contracts and J/V agreements, DBE program records, interview members of the airport staff, selected prime contractors and DBE participants in contracts with DBE and ACDBE goals, and conduct one work site visit where DBEs are currently performing work. • Report of Findings & Recommendations – draft report will be sent to the airport, followed by a final report for corrective actions.

27. Example: Good Faith Efforts Requirements • Bidder/offeror commit to meet contract goal, or make good faith efforts if unable to meet goal in whole or in part. • Bidder/offeror to submit DBE utilization plan, and letter of intent signed by the DBE, or documentation of good faith efforts, if contract goal not met. • Airport to have procedures for evaluating bidder/offeror’s good faith efforts, including administrative due process, and documentation of the airport’s determination of good faith efforts. • Good faith efforts have been determined by airport before awarding contract.

28. Examples of Good Faith Effort Program Issues • DBE promised work, but name never submitted to airport. • DBE’s name submitted to airport, but prime contractor did not provide contract work to the DBE. • Contract awarded without the goal being met, and with the submission of good faith effort documentation after the contract award. • No documentation of the airport’s determination of good faith efforts by the apparent successful bidder or offeror. • Termination of DBE for convenience permitted even when the good faith effort of prime contractor may be in question.

29. Examples of Best Practices for Ensuring Good Faith Efforts • Letter of Intent form signed by both prime contractor and DBE. • Contract provides that bidder/offeror commits to meet contract goal in good faith. • DBE utilization form submitted with bid on bid day (in RFP, with the offer). Letter of Intent requested within three days or less of notification of bidder/offeror as apparent successful contractor. • A copy of DBE utilization form and letter of intent shared with Engineering Office; DBE schedule of work shared with DBELO Office. • Issues of potential replacement of a DBE shared by Engineering Office with DBELO office in timely manner.

30. Questions?