Transcript DBE Complaint Investigations & Compliance Reviews “We are who we serve”

Federal Aviation
Administration
DBE Complaint Investigations
& Compliance Reviews
2009 National DBE Conference
FAA Office of Civil Rights
“We are who we serve”
Overview of the DBE Program
• Airport Improvement Program
– Grant Assurances
• Complaint Investigations
– Complaints Against Airports
• DBE and ACDBE Compliance Reviews
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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.
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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.
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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
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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.
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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.
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Nondiscrimination
Airport 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
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DBE and ACDBE
Complaint Investigations
Regulation Authorities
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§ 26.7 What discriminatory actions in the
DBE Program are forbidden?
(a) 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.
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§ 23.9 ACDBE Program Nondiscrimination
(a) As a recipient, you must meet the nondiscrimination 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.
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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).
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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/textidx?c=ecfr&sid=6675c3b4a4151dbf7a5389af3d572090&rgn=di
v8&view=text&node=14:1.0.1.2.7.3.11.2&idno=14
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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.
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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
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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
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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//
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DBE COMPLIANCE
REVIEWS
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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.
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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.
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Preparing for a compliance review:
Airport Self -Assessment
• The DBE and ACDBE regulations
• Your DBE and ACDBE Program
• Actual implementation at your Airport
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Examples of Review Areas
Basic DBE Program Requirements
• An approved DBE program by the FAA
• DBE policy statement & distribution
• DBE Liaison Officer (DBELO) and adequate
staff to administer program
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Examples of Review Areas
Basic DBE program requirements
• Goal setting process
• Race neutral and race conscious efforts
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Examples of Review Areas
Procurement process--Pre-award
• Contract assurances and clauses
• No co-mingling with local programs
• Good faith efforts
• Counting DBE Participation
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Examples of Review Areas
Procurement Process—Post Award
• Monitoring Mechanisms in DBE program
• Monitoring Actual Work by DBEs
• Monitoring Attainments
• Prompt Payment and Retain age
Mechanisms
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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.
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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.
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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.
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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.
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Questions?
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