DBE METHODOLOGY AND GOAL FOR CAPITAL AREA TRANSIT
FOR FEDERAL FISCAL YEARS:
2012, 2013, 2014
June 15, 2011
OVERVIEW OF THE GOAL-SETTING PROCESS
The following narrative explains the efforts of the Capital Area Transit (“CAT”) to establish a three (3) year DBE participation goal as set forth in Title 49 Code of Federal Regulations Part 26 with an effective date of March 5, 2010. CAT was required to implement the three (3) year DBE goal for Federal fiscal years: 2012, 2013, and 2014. Additionally, the methodology utilized for participation goal based on the federally-aided contracts using funds disbursed by the Federal Transit Administration (“FTA”) is outlined. The federal regulatory mandate is set forth in Title 49 Code of Federal Regulations Part 26 (Part 26).
The Regulatory Mandate:
Recipients of FTA funds are required to submit new overall goals for DBE participation using the two-step goal-setting process set forth in Section 26.45 of Part 26 by:
- establishing a base figure for DBE availability;
- describing the evidence with which it was calculated;
- by making adjustments to that figure, where appropriate; and,
- describing the evidence relied upon for such adjustments.
Under Step One of the goal-setting process, recipients are compelled to calculate DBE availability to set a new annual overall goal for FTA-assisted contracts based upon “demonstrable evidence of the availability of ready, willing and able DBEs relative to all businesses ready, willing and able to participate” on its FTA-assisted contracts.
Under Step Two, recipients must examine all relevant evidence for consideration of a possible adjustment to the base figure to reflect the “effects of the DBE program and the level of participation that would be expected but for the effects of past and present discrimination.”
As an extension of this process, Section 26.45 requires recipients to meet the “maximum feasible portion” of its overall DBE utilization goal through race-neutral means. Under Section 26.51(b), race-neutral means include providing assistance in overcoming limitations such as the inability to obtain bonding or financing by simplifying the bonding process; reducing bonding requirements; eliminating the impact of surety costs from bids; and, providing services to help DBEs and other small businesses obtain bonding and financing. Race neutral participation occurs any time that a DBE wins a prime contract through customary competitive procurement procedures; is awarded a subcontract on a prime contract that does not carry a DBE goal, or even if there is a DBE goal, wins a subcontract from a prime contractor that did not consider its DBE status in awarding the contract (e.g. a prime contractor that uses a strict low bid system to award subcontracts).
Quality of the Goal-setting Data
As a way of demonstrating its commitment to the DBE program, CAT expended its own funds to obtain professional assistance in developing its DBE goal methodology that is currently being utilized. CAT retained the firm of Davenport Communications, a firm with a long history of involvement with the DBE program, to help develop this methodology. Davenport Communications provided CAT with the tools to finding the best data available to meet the “narrow tailoring” requirements of the regulations and applicable court decisions. In this context, “narrow tailoring” means that the data is applicable to local market conditions, pertinent industries, and is the most up-to-date data available.
The Critical Public Notice and Public Comment Component of DBE Goal-setting
CAT has posted notices in the two largest circulation newspapers in the region, the Patriot News in Harrisburg, and the Sentinel in Carlisle. The notice directs all interested parties to a website where any interested parties may study this methodology. Additionally, the notice provides an address where public comments may be sent. This methodology was posted on the CAT website on June 15, 2011, effectively beginning the public comment period. CAT will receive public comments until the close of business on July 30, 2011.
Following the public comment period, CAT will review any public comments received and incorporate relevant portions into the final goal submittal to FTA.
SUMMARY OF THE PROPOSED OVER ALL DBE GOAL TWO STEP GOAL-SETTING EFFORT
First, CAT identified any potential sources of contracting opportunity that may be available for DBEs. Step 1 calls for “determining a base figure for the relative availability of DBEs” (49 C.F.R. § 26.45(c)). “Relative availability of DBEs” means “the availability of ready, willing and able DBEs relative to all businesses ready willing and able to participate on DOT-assisted contracts” (49 C.F.R. § 26.49(b)).
Step-1-In step-1, CAT identified areas of potential DBE contracting opportunity during FFY 2012 through 2014. CAT used the Transportation Improvement Plan (TIP) as a guide in analyzing DBE opportunities.
The prior DBE goal utilized anticipated Corridor One project DBE participation. The DBEs participated as subcontractors under the prime consultant. The history of DBE participation was:
FFY 2007 69.04%
FFY 2008 63.46%
FFY 2009 no subconsulting work performed on the contract
FFY 2010 no subconsulting work performed on the contract
FFY 2011 no subconsulting work performed on the contract
The future of Corridor One project is unknown at this time and therefore, no DBEs were included in this goal calculation.
Additionally, at the time the 2010 goal was developed the use of the American Reinvestment and Recovery Act of 2009(ARRA) timeline did not coincide with reporting DBE goals to FTA. Subsequently, the initial application was changed to be used for purchase of nine (9) Hybrid-Electric buses. The Transit Vehicle Manufacturer reports the DBE participation.
CAT then identified the immediate local market as Dauphin, Cumberland, York, Lancaster, and Lebanon Counties. CAT further extended the DBE search to include: Adams, Franklin, Juniata, Perry, Snyder, Schuylkill, and Northumberland Counties.
When identifying DBEs, CAT refers to those firms certified by the Pennsylvania Unified Certification Program (“UCP”) The UCP list of DBEs is used in conjunction with CAT’s bidders’ list, and U.S. Census Bureau. CAT reviewed the DBEs on the Pennsylvania Unified Certification Program for the 12 counties surrounding CAT’s primary location in Harrisburg. CAT then produced a report capturing each DBE, DBE’s NAICS # and NAICS Description for ease in referencing future DBE project opportunities.
Step-2-Under Step-2 of the goal setting process, the CAT was compelled by the DBE regulation to examine all relevant evidence in its jurisdiction to determine what adjustments, up or down, were needed to arrive at the overall goal. Step 2 necessarily took into account other conditions or variables impacting DBEs in the identified market area.
To facilitate understanding of CAT’s methodology and goal, a starting point is an examination of the working definitions. CAT uses the following program terms:
A = All available businesses within one or a group of NAICS categories, derived from the Census Bureau’s County Business Patterns database (2008).
D = The eligible DBE businesses within one or a group of NAICS categories, derived from CAT’s bidder list and Pennsylvania Unified Certification Program (“UCP”).
W = The weight (as a percentage of the total federal monies available) assigned to each individual or group of NAICS categories.
W*(D/A) + W*(D/A) = %
22.63% *(1/31) +1.90 %( 1/54) = .77%
RACE CONSCIOUS/RACE NEUTRAL ADJUSTMENT
CAT expects to meet the entire goal through race-neutral means. CAT is limited in use of DBEs as no major construction projects are in the plans. CAT will circulate the DBE spreadsheet to all managers of CAT to alert them to possible DBEs. CAT sees no reason to change the .77% goal due to the question of the future of Corridor One project.
As the result of efforts by CAT to date, the overall goal for participation by DBEs in CAT’s federally assisted contracts will be .77%. It will be through race-neutral measures.
In recognition of CAT’s additional responsibility to foster DBEs, CAT will meet with Pennsylvania’s DBE Department in the Department of General Services to forge a partnership in developing state DBE into Federal qualifying DBE firms. CAT’s DBE Liaison and the Manager of Procurement/Maintenance will review all renovation related projects in the early stages to ascertain the best method to develop the bid specifications to enable more DBE participation. Additionally, the DBE Liaison will share the DBE spreadsheet with all managers.
PROGRAM TERMS CONSISTENT WITH 49 C.F.R. PART 26.
DBE – A small, for-profit business that meets the size, ownership, control, and definitional requirements of 49 C.F.R. Part 26.5 and has been certified by Pennsylvania’s Unified Certification Program (UCP) under the federal regulation set forth in 49 C.F.R. Part 26.
READY, WILLING AND ABLE BUSINESSES/ENTERPRISES – The current universe of businesses interested, capable, and authorized to perform work on CAT’s federally-assisted, transportation-related contracts. Ready refers to those businesses that perform a trade, function or service that may be utilized on CAT’s federally-assisted contracts. Willing refers to ready businesses that have either performed or expressed a bona fide interest in performing a function on CAT’s federally-assisted contracts. Able refers to ready and willing businesses that have fulfilled CAT’s requirements to participate in the performance of its federally assisted contracts
READY, WILLING AND ABLE DBEs – Those businesses that meet the definition of “ready, willing and able businesses” and that have been certified any of the certifying entities for the UCP consistent with the provisions of 49 C.F.R. Part 26.
RELATIVE AVAILABILITY OF DBEs – Consistent with 49 C.F.R. Part 26.45, “relative availability” of DBEs refers to demonstrable evidence of the availability of ready, willing and able DBEs relative to all businesses ready, willing and able to participate on CAT’s federally-assisted transportation-related contracts.
RACE-NEUTRAL MEASURES – Consistent with Section 26.5, the definitional section of the federal regulation set forth in 49 C.F.R. Part 26, CAT’s race-neutral measures are those designed to assist all small businesses as opposed to measures designed to benefit DBEs alone.
RACE-CONSCIOUS MEASURES – Consistent with the definitional section of the federal regulation set forth in 49 C.F.R. Part 26, CAT’s race conscious measures are those that are focused exclusively on DBEs. These include traditional contract goals.