Airport business diversity conference year in review preview legal issues
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Airport Business Diversity Conference Year in Review/Preview Legal Issues. Airport Improvement Program (AIP). Federal Grant Program Focuses on Developing and Maintaining the Nation’s Public Use Airports In FY 2007, awarded about $3.5 Billion in grant dollars for more than 2,500 projects

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Airport Business Diversity Conference Year in Review/Preview Legal Issues

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Airport business diversity conference year in review preview legal issues

Airport BusinessDiversity ConferenceYear in Review/PreviewLegal Issues


Airport improvement program aip

Airport Improvement Program (AIP)

Federal Grant Program

  • Focuses on Developing and Maintaining the Nation’s Public Use Airports

  • In FY 2007, awarded about $3.5 Billion in grant dollars for more than 2,500 projects

    • 3,300 airports are eligible for AIP grants for airport planning & development

  • FAA has a policy of ensuring that socially and economically disadvantaged businesses are able to participate in contracting opportunities created by AIP grants.


  • Aip and dbe

    AIP and DBE

    DBE Requirements

    • Accept federal grant funds - airport sponsor must comply with Civil Rights statutes, Executive Orders and other federal regulations

    • See 49 USC 47123, 47107(e), and 47113

    • Sponsors must have DBE program if awarding $250,000 or more in AIP funds. 49 CFR 26.21


    Faa reauthorization and aip

    FAA Reauthorization and AIP

    • FAA Released NextGen Reauthorization Bill in Feb 2007

    • House version of Reauthorization (HR2881) passed September 20

    • Bill hasn’t gotten out of the Senate. Other non-FAA provisions (highway funding, rail tax credit bonds, doubling tax on oil spills) added in substitute.

    • Substitute bill failed cloture vote in May (which limits time that a bill can be debated) – this basically stalls the bill in the Senate.


    Faa reauthorization and aip1

    FAA Reauthorization and AIP

    • For the AIP program to be in the “grant business” FAA must have three things – AIP Contract Authority, Trust Fund Expenditure Authority and Trust Fund Revenue Authority

    • FAA Contract Authority comes from the actual authorizing statute itself.

      • Has not been passed yet.

    • FAA can continue issuing AIP grants through June 30, 2008 – the current extension.


    Faa reauthorization and aip2

    FAA Reauthorization and AIP

    • Our current authorization extension takes us through June 30, 2008.

    • Before that time, there will need to be a statutory remedy that allows the AIP program to continue.

    • After June 30, 2008 – construction and design for grants that have already been issued can continue, but no new grants can be issued.


    Faa reauthorization and aip3

    FAA Reauthorization and AIP

    • Both House and Senate versions include AIP increases for each of the 4 years of the authorization

      • $3.8 Billion in FY2008, increasing to $4.1 Billion in FY2011.

    • House bill includes PFC increase to $7.00

    • Senate did not include a PFC increase.

    • Both the House Bill and the Senate Bill included provisions for an Airport Concessions Training Program.


    Faa reauthorization and aip4

    FAA Reauthorization and AIP

    • Senate Bill 1300 Section 703 Requires FAA to establish a formal certification training program for airport concessions DBE program.

    • House Bill 2881 requires the Secretary of Transportation to establish a mandatory training program on DBE certification within 1 year after a passage of reauthorization with a report to Congress within 24 months of enactment.

    • Both House and Senate proposal include new initiatives on the environment, including research and proof of concept programs.


    Faa reauthorization and aip5

    FAA Reauthorization and AIP

    • Environmental issues key over next few years at airports.

    • Environmental issues are strongly supported by both the House and the Senate.

    • FAA has also strongly supported environmental initiatives.

    • Focus on the environment could lead to expanded opportunities for DBE participation at airports.


    Recent court challenges

    Recent Court Challenges

    • South Florida Chapter of Association of General Contractors v. Broward County

      • Challenges County’s Part 26 program

    • Pacific Legal Foundation v. Port of Oakland

      • Challenges Port’s non-car rental Part 23 program

      • Claim under Proposition 209


    Part 26 cases

    Part 26 – Cases

    • Adarand, Western States Paving, Sherbrooke and Northern Contracting

    • USDOT’s DBE Program has been upheld and found constitutional


    Business size 23 33 and 26 65

    Business Size §§ 23.33 and 26.65

    • Race and Gender based programs must be narrowly tailored to meet a compelling governmental interest.

      • One element of a narrowly tailored DBE program - DBE business must be small

        • measured by gross receipts or number of employees.

    • Existing business size standards have not been adjusted for inflation since 1992.

    • DOT final rule issued April 2, 2007 (effective May 2, 2007), makes inflationary adjustments for ACDBE and DBE size standards.

    • Similar inflationary adjustments to ACDBE size standard every two years and to DBE size standard every year.


    Specifics on business size parts 23 and 26 revisions

    Specifics on Business Size – Parts 23 and 26 Revisions

    • Most ACDBE businesses - $47.78 million gross receipts averaged over previous 3 fiscal years (previously $30 million)

    • ACDBE Banks and Financial Institutions - $750 million in assets (previously $275 million)

    • Car rental ACDBE businesses - $63.71 million gross receipts averaged over previous 3 fiscal years (previously $40 million)

    • Pay Telephone ACDBE businesses - 1,500 employees (no change from previous standard)

    • ACDBE Automobile Dealers - 200 employees (no previous standard)

    • DBE Businesses: $20.41 million gross receipts averaged over previous 3 fiscal years (previously $19.57 million)


    New questions and answers

    New Questions and Answers

    • New Q & A’s under review in DOT

      • UCP Issues

      • Joint Check Issues

      • Subrecipients

      • Assistance by Prime Contractor

      • Certification

      • Confidentiality

      • Consultation


    Enforcement

    Enforcement

    • Airport Sponsor subject to compliance reviews by Office of Civil Rights

    • 14 CFR Part 16 Airport Enforcement Proceeding

      • Withhold grant funds

      • Terminate grant eligibility

    • DOJ referral for DBE/ACDBE Program Fraud

      • Jail

      • Fines

    • Suspension and Debarment

      • Listed on the Federal Government’s Excluded Parties List System; not eligible to participate in Federal contracts

        • http://epls.arnet.gov

    • DOT directive to UCP to initiate proceeding to remove DBE/ACDBE certification


    Upcoming regulatory activity

    Upcoming Regulatory Activity

    • Sunset provision in 49 CFR Part 23

      • Provisions of this rule will become inoperative on April 21, 2010 unless extended by DOT

      • Begin review in 2009 on whether to extend program

        • Process offers opportunity for modifications to program


    Links to usdot information

    LINKS TO USDOT INFORMATION

    • Secretary’s Briefings and Speeches

    • http://www.dot.gov/affairs/briefing.htm

    • OIG’s Investigation Reading Room

    • http://www.oig.dot.gov/Room?type=2

    • USDOT Order 4200.5D Governmentwide Debarment, Suspension, and Ineligibility

    • http://www.dot.gov/ost/m60/grant/DOT_Order_4200.5D.pdf

    • Excluded Parties List System

    • http://www.epls.gov/

    • Questions and Answers Concerning Response to Western States Paving Company v. Washington State Department of Transportation

    • http://www.fhwa.dot.gov/civilrights/dbe_memo_a5.htm

    • Office of Small and Disadvantaged Business Utilization for DBE Program Issues includes Links to 49 CFR Parts 23 and 26

    • http://osdbuweb.dot.gov/business/dbe/dbe_program.cfm


    Questions

    Questions


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