Project owners who receive DOT funding for projects and have DBE goals for their contracts that they have advertised but not yet let, should issue amendments removing the DBE goals, the FAQ states.

If bidding has been opened but the contract not yet awarded, owners must “zero out” the DBE goal. DOT says owners only need to re-advertise those contracts if required by their respective state. And contracts that were executed before Oct. 3 do not need to be modified, but DBE participation cannot be counted until the relevant certification program has completed its revaluation. If any DBE firms on a contract are not recertified, the owner will need to “discontinue the effect of the unconstitutional certification” or lose DOT funding for the contract. 

During the reevaluation period, regulatory DBE termination provisions remain in effect, the FAQ notes, and prime contractors need the owner’s written consent for good cause to terminate a DBE firm’s contract. Owners are still required to implement and document compliance with prompt payment requirements during the reevaluation period, too. 

As part of the reevaluations, certifying programs will need to review DBE firms for which they are the original certification jurisdiction, but not DBEs certified through interstate certification procedures, according to the FAQ. DBE firms that are recertified will need to again apply for interstate certification. 

DOT reiterated that there is no deadline for reevaluations to be complete, just that the reviews should be done “as quickly as practicable.” 

There is also no deadline for DBE firms to submit their documentation to demonstrate their eligibility under the revised standards, but firms that have not submitted the necessary information will remain ineligible for the program. Any firms that are decertified as part of the reevaluations can appeal to DOT, officials wrote in the FAQ. 

For firms that had relied on the race and/or sex presumptions to qualify as DBEs, Wendell Stemley, president of the National Association of Minority Contractors, who spoke to ENR before the FAQ’s release, said DBE owners should still be able to demonstrate financial disadvantage if their families have personally been impacted by events like slavery and land seizures by the government through history that have limited their ability to build generational wealth—though it may be painful to talk about. 

“To get no financial benefit from that generational wealth that others are thriving from even today makes it difficult to catch up to the same level of wealth that gives you the ability to go into business, maintain a business and have the necessary resources for equipment and materials,” Stemley said. 

While the rule has already taken effect, DOT is accepting public comments through Nov. 3. Several DBE contractors shared that they are worried reevaluations could delay procurement, bids and payments on projects, and the updated standard could prevent their firms from being able to compete for jobs. 

“These large firms already possess the financial stability, extensive networks and institutional experience to dominate public works projects,” the owner of a small DBE grading contractor wrote. “The DBE program at least ensured that smaller firms like mine were considered, fostering competition and industry growth.”

Other commenters said they had lost opportunities as DBE participation goals have increased, since their firms did not qualify.

One commenter from a geotechnical engineering firm suggested ways firms could “outgrow” the program, or that project owners could reduce DBE participation goals. Another commenter, who owns a service-disabled veteran-owned small business, asked DOT to establish a similar goal program for businesses like his own.