1 / 14

Transportation Research Board of the National Academies 90th Annual Meeting Washington, D.C.

Transportation Research Board of the National Academies 90th Annual Meeting Washington, D.C. Disadvantaged Business Enterprise Program: Private Sector Perspective on Legal Issues Colette Holt Attorney at Law 24 January 2011. 2010 Notice of Proposed Rulemaking Private Sector Perspective.

marva
Download Presentation

Transportation Research Board of the National Academies 90th Annual Meeting Washington, D.C.

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


  1. Transportation Research Board of the National Academies90th Annual MeetingWashington, D.C. Disadvantaged Business Enterprise Program: Private Sector Perspective on Legal Issues Colette Holt Attorney at Law 24 January 2011

  2. 2010 Notice of Proposed RulemakingPrivate Sector Perspective • Accountability for Overall Goals • Loss of remedial focus • Failure to seriously think through what would the market look like “but for” discrimination • Politically motivated methodologies to reduce goals • Magical thinking about the effects of race-neutral approaches • Failure to measure results • Failure to provide adequate resources • Unintended consequence: lower goals? • Overall: support

  3. 2010 Notice of Proposed RulemakingPrivate Sector Perspective, cont. • Goal Submission • Eases administrative burdens on recipients • Reduces stakeholder input • Reduces incentive & opportunity to revise goal setting methodologies • Overall: support • Focus on FTA & FAA recipients with fluctuating funding • Review annual recipients’ reviews of progress towards meeting overall goals

  4. 2010 Notice of Proposed RulemakingPrivate Sector Perspective, cont. • Improving Program Oversight • Weakest link in the DBE Program • Problems • Lack of on site monitoring • Unauthorized DBE substitutions • Slow or no pay • Commercially useful function determinations • Balkanization of responsibility: “DBE compliance is not the project manager’s job”

  5. 2010 Notice of Proposed RulemakingPrivate Sector Perspective, cont. • Sham joint ventures • Brokers • DBELO reporting to CEO on paper only • Inadequate staff resources • Inconsistent regional guidance • Wishing will not make it so • Increased training for regional offices • Imposition of penalties for poor Program administration • Criminal prosecutions filling the void • Commercially useful function investigations  indictments • Lack of expertise of prosecutors  confusion of Program standards • Overall: support

  6. 2010 Notice of Proposed RulemakingPrivate Sector Perspective, cont. • Personal Net Worth Test • Indexing long overdue • Harmonizes Part 26 & Part 23 • Retirement accounts are wealth • “Illiquidity” argument is too broad • Total exclusion will benefit the wealthiest & least disadvantaged DBEs  racially disproportionate impact (i.e., helping white women) • Reduce to present value • No cap • Overall: support

  7. 2010 Notice of Proposed RulemakingPrivate Sector Perspective, cont. • Interstate Certification • Balancing act between administrative ease & Program integrity • Rebuttable presumption reduces paperwork & provides an “out” for non-state UCP • Burden should be an the applicant, per usual approach & stance of seeking a government benefit • “Fast track” timetable may be difficult to follow • Publicize that there is no “recertification”; review eligibility triennially; create USDOT database of denials & decerts • Overall: support

  8. 2010 Notice of Proposed RulemakingPrivate Sector Perspective, cont. • Fostering Small Business Participation • Critical element, too often honored in the discussion but not the execution; internal agency resistance • Possible approaches • Unbundling • Small business setasides • Waiving or reducing bonding • State law issues? • Federal solution?

  9. 2010 Notice of Proposed RulemakingPrivate Sector Perspective, cont. • DBE Terminations & Substitutions • Primes must receive prior approval • Critical Program element • Unauthorized substitutions may be the largest contract performance problem • Reports of blatant discrimination • Overall: support • Counting DBE purchases & leases • Current rule prohibits credit for items purchases from the prime • Overall: support keeping present approach

  10. 2010 Notice of Proposed RulemakingPrivate Sector Perspective, cont. • Certification Issues • NAICS codes • Procedure for code removal • Effect of code removal • Eligibility on the basis of current capacities • No unnecessary barriers reflecting future projections • Certifications don’t lapse or expire • Overall: support • Do require periodic site visits • Prohibit user fees from DBEs

  11. Litigation Update • Kline v. Pocari & Maryland DOT • Pleading stage • New study & statute forthcoming  mootness? • AGC of San Diego v. Caltrans • Expert reports filed • Effect of exclusion of Hispanic & sub-continent Asian males? • Kevcon v. US • Expert reports filed • Dismissed by plaintiff with prejudice

  12. Litigation Update, cont. • Midwest Fence v. Illinois DOT & Illinois Tollway • Pleading stage • Both agencies have draft disparity studies • Controlling case law upheld IDOT’s DBE Program in 2007

  13. Federal Railroad AdministrationDisparity Study • RFI pending for study • Challenges • Data collection • Non-DBE subcontractor payments • Grantee records • Role of Congressional record for Part 26? • Regulatory structure like Part 26? • Time for completion • Cost • Follow National TRB Guidelines? http://onlinepubs.trb.org/onlinepubs/nchrp/nchrp_rpt_644.pdf

  14. Colette Holt Attorney at Law 1730 North Clark Street Suite 4007 Chicago, IL 60614-5363 312.846.1438 (Office) 773.255.6844 (Cell) colette.holt@mwbelaw.com

More Related