PURPOSE: This rule describes how MoDOT will set its annual DBE Program goal, and its individual contract goals on USDOT-assisted contract work.

1. (1) Annual Overall Program Goal.

   1. (A) The Missouri Department of Transportation (MoDOT) will set its annual overall Disadvantaged Business Enterprise (DBE) Program goal (or goals) as a percentage of all federal aid highway funds for the coming year. The goal will be submitted to USDOT by August 1 of each year. MoDOT will also submit a narrative of the goal-setting process including participants, the evidence utilized, and adjustments made. The narrative will state what percentage is expected to be met by race-neutral and race-conscious means.
   2. (B) Public Participation. In order to ensure public participation, MoDOT will consult DBE firms, DBE organizations, contractor organizations, local public agencies, the general public, and other interested and knowledgeable parties. MoDOT will publish the proposed overall goal in general circulation, minority and female focused publications, trade association publications, and the MoDOT website. Written comments can be directed to MoDOT’s DBE liaison officer. MoDOT will publish a notice of its goal-setting process by June 1 of each year in order to allow thirty (30) days for evidence inspection and public comment.
   3. (C) Amount of Goal. MoDOT may use an interim goal-setting mechanism while it updates its availability calculation basis to set its DBE goals based upon the most legally defensible methodology. MoDOT may consult with economics and statistical experts to assist in adopting a goal-setting methodology that best meets the constitutional requirements of narrow tailoring in setting MoDOT’s overall DBE goal.

   4. (D) Goal-Setting Process.

      1. 1. MoDOT will submit its overall goal

to the United States Department of Transportation (USDOT) on August 1 of each year, commencing with August 1, 2000. Before establishing the overall goal each year, MoDOT will consult with minority, female, and general contractor groups, community organizations, and other officials or organizations. These groups include, but are not limited to, the minority contractors associations within the state, Women in Construction, National Association of Women in Construction, Kansas City Hispanic Contractors Association, the Associated General Contractors, Heavy Constructors Association, Transportation Commission

Associated General Contractors of St. Louis, St. Louis City, City of Kansas City, other municipal entities, and any other organization or individuals necessary to obtain information concerning the availability of disadvantaged and non-disadvantaged businesses, the effects of discrimination on opportunities for DBEs, and MoDOT’s efforts to establish a level playing field for the participation of DBE firms.

1. 2. Following this consultation, MoDOT

will publish a notice of the proposed overall goal, informing the public that the proposed goal and its rationale are available for inspection during normal business hours at the headquarters office for thirty (30) days following the date of the notice. MoDOT and the USDOT will accept comments on the goals for forty-five (45) days from the date of the notice. Normally, MoDOT will issue the notice by June 1 of each year. The notice will include addresses to which comments may be sent and addresses, including office and website addresses where the proposal may be reviewed. MoDOT will begin using the overall goal on October 1 of each year, unless other instructions have been received from USDOT.

1. 3. MoDOT will include a summary of

information and comments received during this public participation process and our responses in the overall goal submission to the USDOT.

1. (E) Raceand Gender-Neutral Means.

   1. 1. MoDOT will strive to meet the max-

imum feasible portion of the overall annual goal by the race-neutral means. Race-neutral participation involves affirmative action to assist all small business contractors and subcontractors. MoDOT uses the following raceneutral means to increase DBE participation:

1. A. Where feasible MoDOT will

unbundle large contracts to make them accessible to small businesses;

1. B. Encouraging prime contractors to

subcontract portions of work normally done by their own forces, when subcontractors submit a lower quote;

1. C. Arranging solicitations, times for

the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate DBE, and other small businesses, participation;

1. D. Providing assistance in overcom-

ing limitations such as inability to obtain bonding or financing, by such means intended to provide services to help DBEs, and other small businesses, in obtaining bonding and financing;

1. E. Providing technical assistance and

other services;

1. F. Carrying out information and com-

munications programs on contracting procedures and specific contract opportunities by ensuring the inclusion of DBEs, and other small businesses, on mailing lists for bidders, and ensuring the dissemination bidders lists of potential subcontractors;

1. G. Providing services to help DBEs,

and other small businesses, improve longterm development, increase opportunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve eventual self-sufficiency;

1. H. Ensuring distribution of the DBE

directory, through print and electronic means;

1. I. Assisting DBEs and other small

businesses to develop the capability to utilize emerging technology and conduct business through electronic media.

1. 2. The amount of the goal estimated to

be achieved by race-neutral means will be provided upon completion of the availability study and analysis set out above.

1. 3. MoDOT does not operate a DBE pro-

gram on projects wholly funded by state funds, therefore, an analysis of the DBE participation on these projects participation over and above the USDOT-assisted projects goals, and past participation of DBE firms as prime contractors will be completed in conjunction with the availability analysis. This participation represents the race-neutral participation achieved by MoDOT and will be used to develop a statistical relationship to estimate the amount expected to be achieved by race-neutral means.

1. 4. MoDOT will adjust the estimated

breakout of race-neutral and race-conscious participation to reflect actual DBE participation and will tract and report race-neutral and race-conscious participation separately. For reporting purposes, race-neutral DBE participation includes, but is not necessarily limited to, the following:

1. A. DBE participation through a prime

contract a DBE obtains through customary competitive procurement procedures;

1. B. DBE participation through a sub-

contract that does not carry a DBE goal;

1. C. DBE participation on a prime con-

tract exceeding the contract goal.

1. (2) Project Goals on USDOT-Assisted Contract Work.

   1. (A) MoDOT will use contract goals to meet any portion of the overall goal MoDOT does not project being able to be met using race-neutral means. MoDOT will establish contract goals only on those USDOT-assisted contracts with subcontracting possibilities.
   2. (B) The External Civil Rights Unit is responsible for setting all DBE goals on MoDOT let projects. The unit is also responsible for review and concurrence on all offsystem, aviation, transit, enhancement, consultant, and any other sub-recipient project DBE goal.
   3. (C) The project goal is set by reviewing the type of project, elements of work to be performed, time frame, geographical location, history of DBE and non-DBE usage, and available DBE firms. The goal will be expressed as a percentage of the total amount of a USDOT-assisted contract.
   4. (D) MoDOT will always attempt to ensure that its DBE Program continues to be narrowly tailored to overcome the effects of discrimination, and MoDOT will adjust its use of contract goals accordingly, as directed in 49 CFR section 26.51. MoDOT welcomes all public comments regarding any contract goal or its contract goal-setting processes. These comments should be made in writing, and sent to MoDOT’s external civil rights administrator.

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.