Category:146 Disadvantaged Business Enterprise (DBE)
Disadvantaged Business Enterprise (DBE) Program is a required federal program administered by MoDOT’s External Civil Rights Division. Projects with federal funding will normally contain a DBE goal that is set to assist in achieving a statewide goal. This article guides the Resident Engineer’s office in administration of the DBE Program on the project level. For any questions or additional information regarding this article, contact MoDOT’s External Civil Rights Division.
146.1 DBE Compliance
DBE compliance consists of ensuring that the prime contracts utilize DBEs as indicated in the contract. Each contract has a contract goal and during the bidding process the prime contractor identifies the DBE vendors that it will use to achieve the project goal. These vendors will be a combination of subcontractors working on the project, suppliers, brokers and trucking companies. The prime contractor and MoDOT should ensure that the DBE vendors used to achieve the goal are performing a Commercially Useful Function (CUF).
146.2 DBE Subcontract
|DBE Program Federal Regulations 49 CFR Part 26|
|DBE Program State Regulations|
|Commercial Useful Function (CUF) Red Flags|
The Resident Engineer should check the subcontract requests
Form C-220 for DBE subcontracts against the DBE Identification Submittal in the contract. The check should include a contract item by contract item review to confirm the line item bids vs. the actual commitment. As with any subcontract item when the prime contractor indicates a partial unit price for a subcontract item, it shall be accompanied with justification for the partial price. An example may be items of work in which a prime is doing some of the work while the subcontractor is performing the remaining work. Justification of partial subcontracts is especially important with DBE work to monitor whether the DBE will be performing the work required. The level of justification may vary depending on the item but may include an actual copy of the subcontract between the prime contractor and DBE subcontractor. Refer to EPG 105.9.17.
146.3 Commercially Useful Function Verifications
Commercially Useful Function (CUF) basically consists of checking that the DBE vendor performs the work, supplies the material, has its own labor, and controls its work. The Resident Engineer office should conduct periodic checks to verify that the DBE vendors are performing a CUF. The verification for CUF varies depending on the capacity the DBE vendor is being used. The following describes what constitutes a check for CUF for various DBE uses.
146.3.1 DBE Subcontract – Performing Work Onsite
For DBE vendors performing work onsite, the CUF check consists of basic verification that the DBE vendor employs the workers, controls the work, purchases the materials and owns or leases their equipment. The MoDOT Disadvantaged Business Enterprise (DBE) Job-Site Review - Commercially Useful Function (CUF) Determination form provides the standard questions to perform a CUF for an onsite DBE. Questions on this form will also require that the engineer check payroll information to ensure that the DBE contractor employees are independent of the prime or other non-DBE contractors on the project. In accordance with 49 CFR Part 26.55 (c), expenditures to a DBE contractor may only count toward DBE goals if the DBE is performing a CUF on that contract. The engineer shall conduct at least one CUF interview using the form for each DBE vendor on the project. Additional interviews should occur if the engineer notices a change in the DBE vendor or prime contractors operations.
146.3.2 DBE Manufacturers, Suppliers and Brokers
Materials manufactured by DBE firms can be counted for DBE participation at the rate of 100% of the materials. DBE suppliers can be counted for DBE participation at the rate of 60% of the value of the material that they supply for the project. DBE brokers act as intermediaries generally for material supply as well and can be counted for participation at the rate of their brokerage fees. The External Civil Rights (ECR) Division will ensure through the firms certification process that the DBE supplier and/or broker conducts their service in accordance with the federal DBE regulations (49 CFR Part 26.55 (e)) regarding CUF. The engineer should report any activities that could indicate that supply has come from a source other than the DBE supplier or that materials are being delivered by someone other than the DBE company. The prime contractor shall routinely supply verification that DBE suppliers are being used as indicated in the original participation. This may include copies of paid invoices, receipt of material certifications from the DBE supplier and/or communication between the DBE supplier and other contractors or the engineer’s office regarding material supply. If there is a request for the use of two-party checks, refer the contractor to the External Civil Rights Division for the required approval. The engineer shall conduct at least one CUF interview using the form for each DBE vendor on the project. Additional interviews should occur if the engineer notices a change in the DBE vendor or prime contractors operations.
146.3.3 DBE Trucking Companies
DBE trucking companies are commonly used for participation on projects. Since DBE trucking companies generally are not submitted as a subcontractor, much like suppliers and brokers, the engineer must take steps to ensure that the trucking firms are being utilized in a CUF manner. The engineer should note in the diary when DBE trucking firms are being utilized on the project with sufficient detail to verify that the trucking firm conducts the work indicated in the DBE Identification Submittal in the contract. To assist with this verification, the CUF Determination form should be used as well. The engineer shall conduct at least one Trucker Interview per each DBE trucking company on the project. Additional interviews should occur if the engineer notices a change in the DBE vendor or prime contractors operations.