PURPOSE: This rule sets forth the MoDOT requirements and processes for determining if a bidder has made a good faith effort to achieve a DBE contract goal in a USDOT- assisted contract.

1. (1) Contract Bidding Requirements.

   1. (A) The award of federally-assisted contracts having Disadvantaged Business Enterprise (DBE) contract goals requires the bidder to submit a completed Missouri Department of Transportation (MoDOT) DBE Participation form as a part of the bidding documents, including a complete list of the DBE firms to be utilized (including manufacturers, suppliers, haulers or truckers, brokers, service providers, and subcontractors); together with a complete detailed listing or explanation of the type and exact nature of the contract services the DBE firm will be providing, if the bidder is awarded the contract. If the bid of the low bidder (as computed) does not show that contractor will Transportation Commission

meet the full DBE contract goal, that contractor will be afforded the opportunity to further document its good faith efforts to reach that contract goal. However, the bidder will not be given the opportunity to submit additional proposed DBE participation, to try to satisfy the contract goal belatedly. MoDOT treats a bidder’s compliance with the good faith efforts requirements of this rule and 49 CFR part 26 as a matter of bidding responsiveness, and a bid which is otherwise low will be rejected as nonresponsive if it does not meet these United States Department of Transportation (USDOT) requirements.

1. (B) The DBE participation portion of the bidding documents must include the following at the time of the bid submission:

   1. 1. The names and addresses of all DBE

firms that will participate in the contract work (if awarded to that bidder);

1. 2. A detailed description of the type and

nature of the work that each DBE firm listed will perform;

1. 3. The dollar amount of the contract

value of each DBE firm’s participation, in total and the portion which is applicable to the contract’s DBE goal;

1. 4. Written and signed documentation of

the bidder’s commitment to use each DBE firm manufacturer, subcontractor, broker or supplier it has submitted, to meet the DBE contract goal;

1. 5. Written and signed confirmation from

each DBE firm listed that the DBE firm shall participate in the contract work as provided in the bidding contractor’s commitment, if the bidder is awarded the contract; and

1. 6. If the bidder’s list of DBE firms and

services does not show full compliance with the entire DBE contract goal set by MoDOT, the bidder must also include an accurate and complete listing or documentation of its good faith efforts to meet that DBE contract goal, even though the bidder did not succeed in obtaining the full DBE participation requested by the contract goal.

1. (C) If a low bidder has not met the DBE contract goal, the bidder’s documentation of good faith efforts must fully comply with the requirements of 49 CFR section 26.53 and Appendix A to 49 CFR part 26. MoDOT will review the low bidder’s documentation, and if the bidding contractor has documented adequate good faith efforts, MoDOT will recommend award of the contract to that low bidder, provided that the bid is otherwise responsive and the bidder is otherwise responsible and qualified to bid.

1. (2) Failure to Document an Adequate Good Faith Effort. In accordance with 49 CFR section 26.53(d), if MoDOT determines that the apparent low bidder has failed to meet the DBE contract goal, and has not documented adequate good faith efforts to achieve that contract goal in its bidding documents, then MoDOT will notify the bidder by telephone, fax transmission and/or in writing of that determination, and will offer the bidder the opportunity for administrative reconsideration of its good faith efforts, in adequate time prior to the commission meeting at which this contract is scheduled to be awarded.

2. (3) Administrative Reconsideration.

   1. (A) The apparent low bidder must make a written request for administrative reconsideration of the MoDOT finding of insufficient DBE participation and inadequate good faith efforts, within two (2) working days of the date the bidder was first notified by phone or in writing of MoDOT’s determination of the lack of good faith efforts. The bidder’s written request for administrative reconsideration may be delivered, faxed or E-mailed to:

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

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

   1. (B) If the bidder makes a timely request for administrative reconsideration, the bidder will have the opportunity to meet in person with the Administrative Reconsideration Committee, to discuss the issue of whether it met the goal or made adequate good faith efforts to do so. The Administrative Reconsideration Committee may be constituted as MoDOT deems appropriate and fair, provided that no committee members on reconsideration shall have taken part in the original MoDOT determination that the bidder failed to meet the DBE contract goal or make adequate good faith efforts to do so. The bidder and the Administrative Reconsideration Committee may make alternative arrangements which are mutually agreeable for their discussion, in lieu of a meeting in person. Any discussion shall be recorded, so that if necessary, a verbatim transcript can later be made of the discussion, and the identity of the speakers.
   2. (C) The Administrative Reconsideration Committee shall timely decide whether the bidder did or did not meet the DBE contract goal, or if not, whether the low bidder made adequate good faith efforts to do so. If the Administrative Reconsideration Committee finds that either the low bidder met the DBE contract goal, or else the low bidder did make adequate and sufficient good faith efforts to do so, then MoDOT will recommend that this otherwise responsible low bidder should be awarded the contract on its otherwise responsive low bid. If the Administrative Reconsideration Committee does not find that the low bidder met the DBE contract goal, or that the low bidder made adequate and sufficient good faith efforts to do so, then MoDOT will recommend that the bid of this low bidder should be rejected as non-responsive, and that the Commission should award this contract to the next low bidder which has properly met the DBE contract goal or adequately documented its good faith efforts to do so, in accordance with 49 CFR section 26.53 and Appendix A to 49 CFR part 26.
   3. (D) The Administrative Reconsideration Committee shall communicate its decision at least verbally or by fax to the bidder in question, prior to the Commission meeting at which this contract shall be awarded. If possible, the Administrative Review Committee will also provide the bidder a written decision on its administrative reconsideration request, explaining the basis for its finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so, before the time of that commission meeting. But in any event, the Administrative Review Committee will provide the bidder with that written decision, explaining the basis for its finding, as soon as possible after the committee has made its decision.
   4. (E) According to 49 CFR section 26.53(d)(5), the result of such an administrative reconsideration process is not administratively appealable to USDOT.

3. (4) Termination of a DBE Subcontractor or Other DBE Firm.

   1. (A) A contractor may not terminate, release or replace a DBE subcontractor, manufacturer, supplier or other DBE firm listed in its bid, and then perform the work of that terminated DBE firm with its own forces or those of another firm, without MoDOT’s prior written consent. The contractor must provide written documentation to the project resident engineer that the DBE firm is unwilling or unable to perform the work, within five working days of the DBE firm’s notice to the contractor of its inability to perform the work. The resident engineer will forward this written documentation and notice of intent to replace a DBE firm to the external civil rights administrator for approval. If the DBE firm’s removal is approved, or a DBE withdraws from the contract work, the contractor must make a good faith effort to find a replacement 7 CSR 10-8

DBE firm. The contractor must make a good faith effort to replace the entire dollar value of the DBE work which was to be performed, and not merely find a replacement for that work which the original DBE firm was to have performed. If MoDOT finds that the contractor did not make a good faith effort to locate alternative DBEs, the contractor is entitled to administrative reconsideration before the Administrative Reconsideration Committee, as set out in section (3) of this rule above. Again, if the Administrative Reconsideration Committee concurs and finds that the contractor did not make a good faith effort to replace the absent DBE firm with other DBE firms, then the contractor is subject to administrative and contract remedies upon final verification of the actual extent of DBE participation in the contract work.

1. (B) If one or more substitute DBE firms are approved for the contract work by MoDOT, the prime contractor must provide the resident engineer and the external civil rights administrator with copies of new or amended subcontracts for those DBE firms. If the contractor fails or refuses to comply in the time specified with any requirement of this section or 49 CFR section 26.53(f), MoDOT will issue an order stopping all or any part of the payments to the contractor on this project or contract, until satisfactory corrective action has been taken. If the contractor remains in non-compliance with any of these requirements or provisions, MoDOT may terminate the contractor for default of the contract work, or take any other appropriate action.

1. (5) Sanctions for Failure to Meet DBE Contract Commitments. If MoDOT finds that a contractor or other firm has failed to comply with the DBE requirements of its bid, this rule, or 49 CFR section 26.53, then MoDOT shall have the sole authority and discretion to determine the monetary value extent to which the contract DBE goals have not been met, and MoDOT shall assess damages against the contractor in the full amount of that breach, to satisfy and liquidate the contractor’s damages for that contract breach. Additionally, MoDOT may impose any other administrative remedies available at law or provided by the contract in the event of such a contract breach. And if the failure to comply with the contractual DBE requirements is intentional or fraudulent in any respect, the contractor and any other firms or persons acting with the contractor are subject to suspension or debarment by MoDOT or the United States, or other civil actions or criminal penalties, in accordance with state and federal law, and USDOT regulations.

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.