Preliminary Note: The U.S. Department of Transportation recently released a long-awaited Notice of Proposed Rulemaking to modernize the Disadvantaged Business Enterprise (DBE) program regulations. This blog is part of a series looking at some of the significant proposed changes. A copy of all of the proposed changes can be found here: https://www.federalregister.gov/documents/2022/07/21/2022-14586/disadvantaged-business-enterprise-and-airport-concession-disadvantaged-business-enterprise-program.

A frequent area of frustration for DBEs is the interstate certification process (the process by which a DBE can get certified in a state other than their home state).  This frustration stems from a slow-moving process with multiple requests for information that go beyond what is permitted by the rules.

Well, the USDOT shares those frustrations and has proposed sweeping changes to simplify the process.  In analyzing its appeal decisions, the USDOT found that it reversed a whopping 77% of appeals involving denials of interstate certification.  Of those reversals, 35% were because the certifier demand that the firm provide information that went beyond what is allowed in the current regulations, 49 C.F.R. § 26.85(c).  Another 26% of those appeals involved certifiers who denied the application for interstate certification for no reason!

The proposed rules require the state where interstate certification is sought (State B) to accept the home state’s certification- establishing reciprocity. The required materials for an application for interstate certification are also greatly reduced- a cover letter, a copy of screenshot showing their company’s listing in their home state’s UCP DBE directory, and a signed Declaration of Eligibility.

State B will have 10 business days to verify the certification and grant interstate certification. This is also a big change, where currently an interstate certification application can drag on for months.  Many companies apply for interstate certification to bid on a particular job or project.  This new deadline will help those companies ensure that they will receive a timely response to their application. 

Have thoughts or suggestions on the proposed PNW rules?  You can make your voice heard by offering your comment here:  https://www.regulations.gov/docket/DOT-OST-2022-0051/document.