ODOT/ AGC IndustryAnnual Meeting DBE Policy Change Michael A. Cobb, Manager, Office Civil Rights Maurice Rahming, President O’Neill Electric February 5, 2010
DBE Policy Background • Since 1995, ODOT has allowed contractors to count the use of a Disadvantaged Business Enterprise (DBE) firm toward its contract goals on projects, whether or not the DBE was certified to do the specific work the contractor hired it to do. • Instead, the DBE could perform any work that showed a commercially useful function and hiring that DBE would count toward a contractor’s project goals. • This practice is contrary to new guidance from the Federal Highway Administration (FHWA), and ODOT is requiring that all contractors follow the new directive (attached).
Current Situation • New guidance issued by US DOT on 7/15/09 provides clear directions for the process to be used to take credit for DBE participation on federal-aid projects. • 49 CFR Part 26 includes some specific guidelines for certification and requires that firms must only be certified for specific types of work.
Current FHWA Ruling • 49 CFR 26.71(n) states, “You must grant certification to a firm only for specific types of work in which the socially and economically disadvantaged owners have the ability to control the firm,” and where sufficient equipment and resources are independently owned or leased. • “To become certified in an additional type of work, the firm needs demonstrate to you only that it’s socially and economically disadvantaged owners are able to control the firm with respect to that type of work.”
Current FHWA Ruling • In training sessions conducted by FHWA, the guidance has been clear that DBE participation can only be credited toward goal achievement in types of work for which the firm is certified. Other states follow this policy. • Based on the new guidance, ODOT will make the necessary program changes to comply with the newly interpreted regulations in order to ensure a continued flow of federal funds. • ODOT is working with the contracting community and OMWESB to implement these changes.
Impacts to Small Business Per 49 CFR Part 26, the work being done outside of certified work categories will not be counted towards any DBE Goal. If a company represents that they are certified in a certain area in which they are not certified, they are breaking Federal Law.
Impacts to Small Business If a company is doing work outside of their NAICS Code, but feels they should be certified under additional codes, they can apply to the Certification Office in writing. The request should include a clear description of any changes or additions, with supporting documentation.
New Ruling Implementation • Implementation Team Established • Contractors • DBE Business Owners • OBDD (OMWESB) • ODOT • Jointly developing a strategy to implement the new policy
Implementation Plan • Step 1. PROPER FORM COMPLETION: • Bidders submit completed and signed “DBE Commitment Certification and Utilization Form” properly filled out with both NAICS code and “Description of Work” recorded for all committed DBE firms. • Currently bid documents that are incomplete or incorrectly filled out are rejected as non-responsive. (Math errors are corrected.)
Implementation Plan • Step 2. NAICS CODE/DESCRIPTIONS: • The work described falls within the definition for the listed NAICS code. • This would be a new evaluation step. If the description is not included in the NAICS Code Summary List to be provided to contractors & subcontractors, ODOT may disallow the amount committed. • Contractors will be able to request assistance from OCR if there are uncertainties concerning codes/descriptions. Only written requests for assistance submitted at least one week prior to bid opening will be accepted. This OCR assistance will be offered for a 6-month period only.
Implementation Plan • Step 3. The DBE firm is certified in the NAICS code listed. • If the firm is not certified in the listed NAICS code/description, ODOT will disallow the amount committed. • Step 4. Notice of Intent to Award Contract
Implementation Plan Step 5. Description of work on “Committed DBE Breakdown and Certification” form matches work submitted at time of bid opening, and falls within certified NAICS codes. • Currently the work agreed to by the subcontractor by signing this form must match the work described in the bid documents. If there is a discrepancy ODOT OCR will notify prime and sub of discrepancy and request correction within 72 hours. If correction is not received within 72 hours the bidder is non-responsive.
Implementation Plan Next Steps: • Implementation Date: Projects advertised after March 1, 2010 • Outreach and training • DBE utilization and certifications will be monitored
OJT and Apprenticeship Description • On-the-Job Training (in-house training programs): Adopted by contractor, approved by Agency/FHWA -provides field/classroom trade specific experience under supervision of journey workers. AA program – targets women & minorities. • Apprenticeship: Approved by BOLI, provides field/classroom trade specific experience under supervision of journey worker. Race/gender neutral for applicable ODOT contracts.
OJT/Apprenticeship Requirements OJT/Apprenticeship is referenced in the special provisions of contract: • Federal OJT Training Special Provisions (“Traditional”) • Reimbursable OJT/Apprenticeship Contract Provisions (“ROA”) • 10% Per Craft (“WDP”)
2009 OJT/Apprenticeship Accomplishments • 172 Federal Aid Projects Awarded in 2009. • Federal OJT (Traditional) • 2009 Goal: 25 Positions • 2009 Accomplishment: 26 Positions on 15 Projects • 10% Per Craft (WDP – Pilot Project): • 2009 Accomplishment: 10% achieved on 7 of 10 crafts on the 25 projects that include this specification.
2009 OJT/Apprenticeship Accomplishments Reimbursable (ROA): • As of 1/4/10 reporting – 25 ROA projects • 5 projects at 2nd note • Approximately 48,500 training hours have been achieved under the ROA specification in 2009. • Region 1 = 14 projects; Region 2 = 3 projects; • Region 3 = 3 projects; Region 4 = 4 projects; Region 5 = 1 project • Total statewide training achieved as a percent = 15.5 • Region 1 = 12.7%; Region 2 = 28.4%; Region 3 = 9.7%; • Region 4 = 14.4%; Region 5 = 12.1%
2010 OJT/Apprenticeship Goals • 74 Projects of $1 million + scheduled to be let in the first six-months of 2010 for an estimated total of $520 million in construction. • Federal OJT Goal (Traditional): • 2010 Goal: 25 Positions • Reimbursable (ROA – Pilot Project): • Projects in ODOT’s Region 1 and new OTIA III projects will be assigned the ROA specification in 2010. • Formal review of ROA pilot project is scheduled for summer/fall 2010. • 10% Per Craft Goal (WDP – Pilot Project): • Specification will continue on existing projects. • All new projects in the to Pilot Project area will be assigned the ROA specification.