Welcome to ALDOT
The integrity and credibility of the Disadvantaged Business Enterprise Program depends upon the establishment of systematic procedures
to ensure that only bonafide firms owned and controlled by socially economically disadvantaged individuals participate in the DOT's DBE
program. Therefore, ascertaining the eligibility of prospective DBE's is a critically important component of a State's DBE program.
Those procedures established to fulfill this aspect of the DBE program are what is known as the Certification Process. This process
consists of three sequential steps to certify that the prospective DBE is eligible to participate in the program.
The three steps are:
Since its inception, the DOT's DBE program has required each State to establish a certification process. It was not until the passage of the 1987 STURAA and the promulgation of the October 21, 1987, regulations that DOT established a uniform certification process. The 1987 STURAA also requires the use of on site reviews and personal interviews as an integral part of the certification effort by the States. The State's certification procedures incorporated into its DBE program document reflects the certification criteria set forth in 49 CFR 26.
49 CFR 26 places the primary responsibility for certifying DBE's upon the Alabama Department of Transportation agencies (ALDOT). There are instances, however, in which another State or local agency or authority other than the ALDOT has been assigned this responsibility by State law. Nonetheless, the ALDOT will take the lead role in ensuring that only certifiable DBE's are to participate in federally assisted projects. Knowledge and understanding of the State's DBE program need to permeate other sections within the ALDOT, especially those who are responsible for the administration or the State's construction program.
The FHWA through its Regional and Divisional offices maintains a close liaison with the States in their implementation of the certification process. The FHWA is available to provide technical assistance to the States for clarification and direction necessary to meet the Federal regulatory and administrative directives issued on certification. The FHWA is also required to carry out the oversight and monitoring responsibilities described below:
It is the responsibility of the applicant to provide the information deemed necessary by the certifying agency to ascertain eligibility. The burden to prove eligibility is upon the applicant, not upon the State. The following guidelines will help clarify the application process:
The STURAA of 1987 requires the State to conduct interviews and on site reviews of all firms as part of the uniform certification process. Appendix A provides a suggested on site certification review guide. The frequency of on site visits and the need for personal interviews of out of state applicants are of paramount concern because of the time and expense required to do the work. On site visits at the home office(s) need to be conducted only once unless a specific concern arises (such as a third party challenge) which would require additional reviews. No home office review is necessary as part of the recertification process unless a previous certification review had not been done or a specific concern arises to warrant a revisit. An acceptable approach for out of state applicants is to require the applicant to possess a currently valid certification from the firm's home State. The non resident State could request from the home State the documentation of the home State's on site visit necessary to assure the validity of the written application. The reality of limited resources in some States may delay on site reviews until after the firm is certified. Recognizing this, on site reviews should be prioritized as follows:
A case file shall be maintained on all firms whether confirmed or denied as eligible to participate. Case files on each individual firm should contain:
The certification process established by the States should function to ensure that only small business firms independently owned and controlled in both substance and form by one or more socially and economically disadvantaged persons are certified. To accomplish this objective and to ensure uniformity and consistency in its application, a set of standards have been established under the State's program documents in accordance with the eligibility criteria set forth under 49 CFR Part 26. The data submitted by the prospective DBE should be sufficient to enable the State to ascertain whether the DBE qualifications meet each of the described standards are:
1. Annual Gross Receipts
The average annual gross receipts for a firm and its affiliates for the previous three fiscal years must not exceed the
amounts shown in the SBA's standard industry classification code size standards established under SBA's regulations, 13
CFR 121.601 shall apply. The firm's classification is based on the firm's primary areas of work experience and not just
on the type of license the firm may hold.
Annual receipts for a firm in business less than three complete fiscal years is computed by:
Total Receipts X 52 = Average Annual Weeks in Business Receipts
2. Affiliates
In determining average annual gross receipts, the revenues of "affiliates" of the firm are included as well as
those of the applicant firm itself. (49 CFR, Subpart D, Appendix A, as amended by Paragraph 14 on page 39261 of Federal
Register, Volume 52, No. 203, dated October 21, 1987)
The definition of "affiliates" is given in 13 CFR 121.401: "Concerns are affiliates of each other when either
directly or indirectly (1) one concern controls or has the power to control he other, (2) a third party (or parties) controls
or has the power to control both, or (3) an identity of interest between or among parties exist such that affiliation may be
found." In determining whether affiliation exists, consideration shall be given to such factors as:
1. Criteria
The intent of the DBE program as prescribed by 49 CFR 26 is to maximize the opportunity of bona fide disadvantaged business
firms to participate in federally‑assisted programs. A disadvantaged business firm is a small business independently
owned and controlled by socially and economically disadvantaged persons.
Upon a firm qualifying as a small business concern, a determination must be made as to the status of the individuals who own and control the business. To qualify as a disadvantaged business, the concern must be under the management and control of socially and economically disadvantaged individuals. By definitions, socially and economically disadvantaged individuals are those U.S. citizens, or lawfully admitted permanent residents, who fall into one of the following categories.
2. Minority Group Membership
The States certification process requires members of the presumptively rebuttable minority groups to prove their disadvantaged
status if reasonable evidence is available to question their minority group membership. The three key factors to be considered
when making an evaluation of the applicant's standing in the minority community are:
3. 8(a) Certification
The 8(a) certification program is under the direct authority of the Small Business Administration. A certified 8(a) firm can be required
to apply for and receive DBE certification by the State for participation in the DBE program. The limits of the State's authority in their
certification of such fires are as follows:
4. Non‑Presumptive Individuals
To accommodate those individuals who do not qualify under the 8(a) category or minority group membership, the State's certification program
provides the opportunity to establish a claim of social and economical disadvantage. Such claims, to be handled on a case‑by‑case
basis, must demonstrate that the applicant: 1) has been subjected to racial or ethnic prejudice or cultural bias because of his/her individual
qualities and, 2) can prove that hither ability to compete in the free enterprise market has been impaired due to diminished capital and credit
opportunities. The various factors to be considered are as follows:
(1) Color
(2) National origin
(3) Gender
(4) Physical handicap
(5) Long‑term residence in isolated environment
(6) Specific instances or discrimination in:
Education
Employment
Credit
Contracting
Membership in business organizations
The disadvantage must have been personally suffered by the applicant and must be chronic, longstanding, and substantial, not fleeting or insignificant. If the applicant does not meet the social disadvantage test, it is not necessary to make the economic disadvantage determination.
5. Rebuttal of Disadvantaged Status 49 CYR 26.67
The presumptive of social and economic disadvantage operating in favor of the designated minority groups and women may be rebutted at
any time before or after certification. The regulations at 49 Cop 26.67 provide for a challenge procedure by third parties. This is not,
however, the only way the disadvantaged status may be challenged. If the State possess credible evidence that would lead a reasonable
person to believe that the applicant is not socially or economically disadvantaged, the presumption is no longer operative and the burden
of proof shifts back to the applicant. The existence of the presumption does not mean that the certifying agency must ignore evidence that
any applicant for certification is not socially or economically disadvantaged unless a third party brings a challenge. It means that in the
absence of such evidence, the State must presume that the applicant is socially and economically disadvantaged.
Practically speaking, the existence of credible evidence that an otherwise qualified applicant is not disadvantaged puts such applicant in a position similar to a challenged minority or woman or an individual claiming disadvantage who is not a member of a designated group. If the State tentatively determines, on its own initiative based on such evidence, that the applicant is not socially and economically disadvantaged, the State should ensure that the applicants) is afforded procedural safeguards to that provided in the case of third party challenges under Section 26.69.
The State should look beyond what is reflected in the ownership documents. Verification can be achieved by conducting on‑site reviews, which includes interviews and research of the individual(s) and company financial and personnel records. Ownership by a represented disadvantaged individual or individuals can be established if:
Source of contributions must fall into one of the following categories:
The source of the contributions must be verified. Such verification should include stock certificates, bank receipts, corporate minutes, and other documents which establish that the contributions are derived from the assets of the individual.
Contribution must be commensurate with the ownership interest:
a. Specifically identified and a monetary value (hourly/daily or monthly) attached;
b. Proffered for the specific purpose of acquiring stock in the business. Such proffer should not be based on prior service to the firm for which the individual has already been compensated; and
c. Documented in the corporate records of the firm. The records must clearly show the contribution of such expertise and its value to the firm.
To establish control the disadvantaged owner(s) must demonstrate sufficient expertise specifically in the firm's field of operation to control the overall destiny and the day‑to‑day operations of the firm. Office management, clerical or other experience unrelated to the firm's field of operations is insufficient to establish control. This control is comprised of two parts; Managerial and Operational.
a. Negotiations and execution of contracts; and
b. Execution (signature) of financial (credit, banking, bonding) transactions and agreements.
Control can be demonstrated in various ways:
The disadvantaged owner should possess sufficient assets/resources to control the operation of the firm in the following areas:
Key factors in assessing the independence of a firm include:
In addition, the firm should possess adequate assets/resources to operate / function self-sufficiently in the areas identified on the previous page.
A history of consistent contractual ties would be a leading indicator of a relationship between two firms that should warrant further review. A firm must not be inextricably associated with another firm through common ownership, affiliation, sharing of employees, facilities, profits and losses. Such ties form an "umbilical cord'' between it and a non‑disadvantaged firm.
A thorough, detailed, and complete analysis of the application file with the supporting documents will be conducted on each firm. The applicant is entitled to prompt action on its application and duly informed when any part of the application is deficient and/or incomplete with an acknowledgment that the application will be held pending further action by the applicant. Following complete analysis of the information provided and possible further field review, a formal report is prepared setting forth a recommendation to either approve or deny the application.
To assure that the certification process has been effectively concluded, all available evidence is documented, reviewed and becomes a part of the case file documentation supporting the decision.