PURPOSE: This rule provides general information regarding MoDOT’s implementation of the DBE Program requirements of Title 49 Code of Federal Regulations part 26 in USDOT-assisted programs and contracts.

PUBLISHER’S NOTE: The publication of the full text of the material that the adopting agency has incorporated by reference in this Statement” pursuant to 49 CFR section rule would be unduly cumbersome or expen- 26.23, stating MoDOT’s commitment to the sive. Therefore, the full text of that material DBE Program, as follows: will be made available to any interested person at both the Office of the Secretary of State and the office of the adopting agency, pursuant to section 536.031.4, RSMo. Such material will be provided at the cost established by state law.

1. (1) United States Department Transportation (USDOT)-Required Disadvantaged Business Enterprise (DBE) Program. The Missouri Highways and Transportation Commission, through Missouri Department of Transportation (MoDOT), has been and is the recipient of federal-aid highway funds, federal transit funds, and airport funds, as described in 49 CFR section 26.3. Some of these funds the commission, through MoDOT, expends directly by awarding a contract for design, construction or other professional services, or supplies, to a contractor or supplier. Some of these federal funds the commission, through MoDOT, transfers to other recipients, for them to expend through appropriate contracts. In accordance with 49 CFR section 26.3 and the provisions of various federal laws such as Transportation Equity Act for the 21st Century (TEA-21) which it implements and enforces, the provisions of Title 49 CFR part 26 are applicable to the commission, MoDOT, and all other recipients of USDOT financial assistance through MoDOT; as well as to the contractors, subcontractors and suppliers which receive USDOT-assisted contracts from the commission and all other recipients of USDOT financial assistance through MoDOT, from the funding sources described in 49 CFR section 26.3 (or their successor sources). The commission, MoDOT, all other recipients of such funds through MoDOT, and their contractors, subcontractors and suppliers on USDOT- assisted contracts, are bound by the provisions of Title 49 CFR part 26; and they are also bound by the commission’s DBE Program regulations in this chapter. Some recipients of USDOT funding through MoDOT, including those described in 49 CFR section 26.21, may be required by such federal regulations to have their own DBE Program. Those recipients of USDOT funding through MoDOT are required to comply with the applicable provisions of this chapter, and to develop other portions of their own DBE program in cooperation with and under the supervision of the USDOT.

2. (2) MoDOT’s DBE Program Policy Statement. MoDOT has developed and filed with USDOT its signed and dated “Policy The Missouri Department of Transportation (MoDOT) has established a Disadvantaged Business Enterprise (DBE) program in accordance with regulations of the U.S. Department of Transportation (USDOT), 49 CFR Part 26. MoDOT has received Federal financial assistance from the Department of Transportation, and as a condition of receiving this assistance, MoDOT has signed an assurance that it will comply with 49 CFR Part 26. It is the policy and commitment of MoDOT that disadvantaged businesses, as defined in 49 CFR Part 26, shall have a level playing field to participate in the performance of contracts financed in whole or part with federal funds. It is also the policy of MoDOT to:

   1. A. Ensure nondiscrimination in the

award and administration of USDOT assisted contracts;

1. B. Create a level playing field on

which DBE firms can compete fairly for USDOT assisted contracts;

1. C. Ensure that the DBE Program is

narrowly tailored in accordance with applicable law;

1. D. Ensure that only firms that fully

meet 49 CFR Part 26 eligibility standards are permitted to participate as DBE firms;

1. E. Assist in the removal of barriers to

the participation of DBE firms in USDOT assisted contracts; and

1. F. Assist in the development of firms

to enhance the ability to compete successfully in the market place outside the DBE Program. The External Civil Rights Administrator has been designated as the DBE Liaison Officer. In that capacity, the administrator is responsible for the implementation of all aspects of the DBE program. Implementation of the DBE program is accorded the same priority as compliance with all other legal obligations incurred by the MoDOT in its financial assistance agreements with the USDOT. MoDOT will advise each contractor, through contract specifications, that failure to carry out these requirements shall constitute a breach of contract and may result in termination of the contract, or any such remedy that MoDOT deems appropriate. MoDOT will require all employees and agents to adhere to the provisions of 49 CFR Part 26. MoDOT shall annually submit to the Federal Highway Administration (FHWA) overall goals for the participation of DBE 7 CSR 10-8

firms for a one year period of time. The goal shall be analyzed, and adjusted if necessary, at the end of each federal fiscal year.

/s/ Henry Hungerbeeler, Director Dated September 30, 1999

1. (3) DBE Program Applicable Only to USDOT-Assisted Contract Work. In accordance with 49 CFR section 26.3(d) and other provisions of federal law, the USDOT DBE Program at 49 CFR part 26, and the commission’s DBE Program regulations in this chapter, only apply to USDOT-assisted contracts awarded by USDOT funding recipients. If the commission or a recipient is bidding or awarding a contract which involves no USDOT funding, and which will be paid or financed entirely with state or local funding, or other federal funding not covered by DBE Program requirements, then 49 CFR part 26 and the commission’s DBE Program regulations in this chapter do not apply to such contract work. Although the commission and MoDOT are implementing raceand genderneutral measures and programs to assist small businesses as they are able to, the commission and MoDOT have no DBE Program applicable to contract work which is entirely state-funded or state and local-funded, and the provisions of this chapter do not apply to such state-funded or state and local-funded contract work. Any commission “Request for Bid” will clearly indicate whether an included project is a federal project or not, and if so, it will contain information on the DBE contract goal, if any. Any recipient of USDOT funding specified in 49 CFR section 26.3 through MoDOT must provide the same information in its bidding documents.
2. (4) The Administration of the Commission’s DBE Program. The Missouri Highways and Transportation Commission has adopted these DBE Program regulations for MoDOT, which executive branch department of state government is subordinate to and controlled by the commission through the commission’s appointee, the MoDOT director, who is MoDOT’s chief executive officer. The administration of the DBE Program within MoDOT has been assigned to the external civil rights administrator, who has been designated as MoDOT’s DBE liaison officer in compliance with 49 CFR section 26.25. The external civil rights administrator supervises the External Civil Rights Unit, and reports directly to MoDOT’s inspector general, who is in turn, supervised by the MoDOT director. However, the external civil rights administrator retains direct and independent access to MoDOT’s director, chief engineer, and all other members of the director’s staff, concerning all DBE Program matters. As the DBE liaison officer, MoDOT’s external civil rights administrator develops, manages, and administers the DBE Program, including defining processes, procedures, and operational policies, and is responsible for implementing all aspects of MoDOT’s DBE Program. The external civil rights administrator directs and controls the staff of the External Civil Rights Unit, and receives assistance as necessary from the inspector general, other MoDOT staff and commission legal counsel, and occasionally from commission-retained consultants and contractors, so that MoDOT has adequate staff to administer this DBE Program in compliance with 49 CFR part 26. The external civil rights administrator works closely with the commission’s chief counsel’s office to review DBE policies and contract provisions periodically, to ensure that they conform to state and federal law; and reviews program administration issues with the commission attorneys assigned DBE program responsibilities.

3. (5) Duties of the External Civil Rights Administrator. The external civil rights administrator performs the following duties and responsibilities, either directly and personally, or through the staff of the External Civil Rights Unit:

   1. (A) Setting and approving DBE contract goals on federal aid construction projects, including projects administered by local public agencies, aviation and transit authorities, or any other recipient receiving USDOT assistance through MoDOT;
   2. (B) Monitoring the DBE contract goals to verify contractor compliance at the time of the bid, when the contract is awarded, during project construction, and at the time of project acceptance;
   3. (C) With the assistance of MoDOT field staff plus other contractors and subcontractors, monitoring DBE performance to determine that the DBE firm has performed a commercially useful function, and has otherwise complied with the requirements of 49 CFR part 26 in that contract work;
   4. (D) Overseeing all support services provided to certified DBEs by MoDOT;
   5. (E) Gathering and reporting statistical data and other information as required by USDOT;
   6. (F) Reviewing third party contracts and purchase requisitions for DBE Program compliance;
   7. (G) Working with MoDOT management, business units and staff to set the annual DBE Program goal, as well as individual project or contract goals;
   8. (H) Ensuring that bid notices and bidding documents are made available to DBE firms in a timely manner;
   9. (I) Identifying USDOT-assisted contracts and procurement, to include DBE contract goals (factoring in both raceand gender-neutral contracting methods as well as contract goals preferential to DBE firms) in bid solicitations, and monitoring the results of those bids;
   10. (J) Analyzing MoDOT’s progress toward annual DBE Program goal attainment, and identifying various raceand gender-neutral or other ways to achieve the annual DBE Program goal;
   11. (K) Participating in pre-bid meetings;
   12. (L) Advising the commission and MoDOT’s director on DBE Program matters and the achievement of MoDOT and USDOT program requirements;
   13. (M) Providing DBE firms with information and assistance in preparing bids, and obtaining bonding and insurance;
   14. (N) Planning and participating in DBE training seminars;
   15. (O) Providing outreach to DBEs and community organizations to advise of training, contracting and other business opportunities available;
   16. (P) Maintaining the MoDOT DBE Directory, its addenda and updates;
   17. (Q) Performing any other functions and duties necessary or appropriate to administer and enforce the provisions of 49 CFR part 26 and this chapter in Missouri.

4. (6) Contacting MoDOT’s DBE Liaison Officer. MoDOT’s external civil rights administrator is MoDOT’s DBE liaison officer. MoDOT’s DBE liaison officer may be contacted in writing or by telephone as follows:

   External Civil Rights Administrator Missouri Department of Transportation 105 West Capitol Avenue, P.O. Box 270 Jefferson City, MO 65102-0270

   Fax Number: (573) 526-5640 Telephone Number: 1-888-ASK MODOT (1-888-275-6636) E-Mail: taeges@mail.modot.state.mo.us

5. (7) DBE Directory. MoDOT publishes a directory annually, with monthly updates, identifying certified DBE firms willing to perform as subcontractors on MoDOT’s USDOT- assisted projects. Copies of the directory are mailed annually to all contractors authorized to do business with MoDOT, DBE firms, Transportation Commission

DBE organizations, contractor organizations, local public agencies, MoDOT district offices, and any other entity requesting copies. Monthly addenda (showing DBE firm additions and deletions, and other certification changes) are mailed to all firms and entities receiving notices of bid openings, and to plan holders, DBE firms, DBE organizations, contractor organizations, local public agencies, MoDOT district offices, and any other entity requesting copies. The firms contained in the DBE Directory and its addenda are certified as meeting the certification eligibility requirements of 49 CFR part 26 and this chapter, unless the addenda specifically lists the firm as not certified any longer. The directory contains each DBE firm name, address, phone, fax, socially and economically disadvantaged owner’s name, the work categories in which the firm may perform DBE certified contract work, and the geographic work area in Missouri preferred by the DBE firm. MoDOT has made the DBE Directory available electronically to all MoDOT district offices, and to the public on the Internet. Paper copies of the DBE Directory are available by contacting MoDOT’s DBE liaison officer or staff members in writing or by telephone as follows:

External Civil Rights Administrator Missouri Department of Transportation 105 West Capitol Avenue, P.O. Box 270 Jefferson City, MO 65102-0270

Fax Number: (573) 526-5640 Telephone Number: 1-888-ASK MODOT (1-888-275-6636) E-Mail: temmek@mail.modot.state.mo.us

1. (8) MoDOT’s Non-Discrimination Policy. MoDOT will not exclude any person from participating in, deny any person the benefits of, or otherwise discriminate against any person in connection with the award and performance of any contract covered by 49 CFR part 26 on the basis of race, color, sex, or national origin. Further, MoDOT will not, directly or through contractual or other arrangements, use criteria or methods that have the effect of defeating or substantially impairing accomplishment of the objectives of the USDOT or MoDOT DBE Program with respect to individuals of a particular race, color, sex, or national origin, in MoDOT’s administration of the DBE Program. The commission and MoDOT are bound by, and agree to comply with, all requirements of USDOT’s 49 CFR part 26, the provisions of which are incorporated by reference into this rule.
2. (9) DBE Program Duration and Updates. MoDOT will continue to carry out the DBE Program until all funds from the USDOT financial assistance have been expended, or Congress has terminated the DBE Program. MoDOT will provide USDOT with updates and revised program submissions representing any significant changes in the MoDOT DBE Program.
3. (10) No Quotas or Set-Asides. MoDOT does not use quotas or set-asides in any way in the administration of the DBE Program.

4. (11) Measures Taken in Anticipation of a Unified Certification Process.

   1. (A) In anticipation of the Unified Certification Process (UCP) and its inherent cooperative program administration, as required by USDOT at 49 CFR section 26.81, MoDOT has submitted to USDOT one DBE Program which incorporates all modes and agencies within the USDOT, including the Federal Transit Administration (FTA) and Federal Aviation Administration (FAA) programs. The MoDOT External Civil Rights Unit and its Administrator will work closely with the FTA and FAA program administrators to develop uniform certification and reporting processes.
   2. (B) The External Civil Rights Unit is responsible for the administration of the DBE program for all USDOT agency requirements. This DBE Program administration includes goal setting for concurrence, participation, verification, and DBE certification.
   3. (C) Any recipients of USDOT funding through the commission and MoDOT will be required to comply with MoDOT’s DBE Program, unless they have a USDOT- approved program of their own. The requisite MoDOT DBE Program compliance includes, but is not limited to, observing all provisions of this chapter and MoDOT’s approved DBE Program which govern MoDOT’s recipients of USDOT funding; and inserting the necessary provisions in their contracts to assure that their contractors, subcontractors and suppliers comply with the applicable provisions of this chapter and MoDOT’s approved DBE Program. Once a statewide UCP is defined, all recipients will be required to accept only those firms certified under the UCP agreement. All Block Grant recipients will continue to be required to comply with leasing goals established by the sponsoring agency.
5. (12) Financial Institutions Owned and Controlled by Socially and Economically Disadvantaged Persons. MoDOT will identify and determine the full extent of services offered by financial institutions owned and controlled by socially and economically disadvantaged persons in Missouri. MoDOT will make reasonable efforts to use the services of these institutions, within the scope permitted by state law. MoDOT will encourage prime contractors and other firms to use the services of those financial institutions which are owned and controlled by socially and economically disadvantaged persons.

6. (13) Required Contract Clauses in USDOT- Assisted Contracts and Subcontracts.

   1. (A) Pursuant to 49 CFR section 26.13(a), each financial assistance agreement the commission or MoDOT signs with a USDOT operating administration, or with another primary recipient of USDOT funding subject to 49 CFR part 26, shall contain the following assurance, in which “DOT” and “the Department” refer to USDOT: “The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award or performance of any DOT-assisted contract, or in the administration of its DBE Program or the requirements of 49 CFR part 26. The recipient shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient’s DBE Program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).”
   2. (B) As mandated by 49 CFR section 26.13(b), MoDOT will require the following assurance to be included in every USDOT- assisted contract which MoDOT or the commission signs with a contractor, and each subcontract that prime contractor signs with a subcontractor; where “DOT” refers to USDOT and “the recipient” means MoDOT and the Commission: “The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out all applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termi- 7 CSR 10-8

nation of this contract or such other remedy as the recipient deems appropriate.”

1. (14) Overconcentration of DBE Firms. USDOT rule 49 CFR section 26.33(a) provides that if MoDOT determines that DBE firms are so overconcentrated in a certain type of work as to unduly burden the opportunity of non-DBE firms to participate in this type of work, MoDOT must devise appropriate measures to address that overconcentration. MoDOT has not identified any types of work in which DBE firms are so overconcentrated. MoDOT will continue to monitor DBE firm participation and usage, and will take appropriate action to address any identified DBE firm overconcentration in a certain type of work.
2. (15) Mentor-Protégé Program. USDOT rule 49 CFR section 26.35 discusses mentor-protégé programs in the context of the DBE Program. MoDOT will not be participating in a mentor-protégé program at this time.
3. (16) Program Violations, or False or Fraudulent Claims or Conduct. MoDOT will notify USDOT of any program violations, or suspected false, fraudulent or dishonest conduct, in connection with the DBE Program, in order for USDOT (and/or the U.S. Department of Justice) to take any of the compliance procedures, enforcement actions or sanctions provided in 49 CFR part 26, subpart F. These procedures, actions or sanctions include, but are not limited to: suspension or termination of federal funding; refusal to approve projects, grants or contracts until deficiencies are remedied; U.S. government-wide suspension or debarment proceedings under 49 CFR part 29; available program fraud and Civil Remedies provided for in 49 CFR part 31; or criminal prosecution under 18 U.S.C. section 1001 or other applicable provisions of law. MoDOT will also consider initiating compliance procedures, enforcement actions or sanctions available under Missouri civil, criminal, contract law, or in equity. The commission and MoDOT will consider whether the conduct at issue affects the determination of that entity’s responsibility as a contractor, and thus, the entity’s eligibility to receive future commission contracts.

AUTHORITY: section 226.150, RSMo 1994*; Title 49 Code of Federal Regulations part 26; section 1101(b) of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, 113; and MoDOT’s approved DBE Program submittals to the U.S. Department of Transportation. Emergency rule filed May 10, 2000, effective May 20, 2000, expired Nov. 6, 2000. Original rule filed May 10, 2000, effective Nov. 30, 2000.

*Original authority: 226.150, RSMo 1939, amended 1977.