Disadvantaged Business Enterprise (DBE)
Good Faith Effort Process
When ODOT has established a DBE contract goal, ODOT awards the contract only to a bidder/offeror who makes responsible good faith efforts to meet or exceed the goal. ODOT determines that a bidder/offeror has made good faith efforts if the bidder/offeror does either of the following things, as per 49 CFR 26.53:
(1) Documents that it has obtained enough DBE participation to meet the goal; or
(2) Documents that it made adequate good faith efforts to meet the goal, even though it did not succeed in obtaining enough DBE participation to do so. If the bidder/offeror does document adequate good faith efforts, ODOT must not deny award of the contract on the basis that the bidder/offeror failed to meet the goal.
Prior To Award
In the solicitations for DOT-assisted contracts for which a contract goal has been established, award of the contract will be conditioned on meeting the requirements of this section. All bidders or offerors will be required to submit the following information to ODOT on the DBE Form 6:
Construction Projects - No later than ODOT's close of business on the Wednesday following the bid opening (DBE Form 6)
Consultant Projects - After negotiation (DBE Form 6)
- The names and addresses of DBE firms that will participate in the contract;
- A description of the work that each DBE will perform. To count toward meeting a goal, each DBE firm must be certified in a NAICS code applicable to the kind of work the firm would perform on the contract;
- The dollar amount of the participation of each DBE firm participating;
- Written documentation of the bidder/offeror's commitment to use a DBE subcontractor whose participation it submits to meet a contract goal; and
- Written confirmation from each listed DBE firm that it is participating in the contract in the kind and amount of work provided in the prime contractor's commitment.
If the contract DBE goal is not met, the documentation of Good Faith Efforts must include copies of each DBE and non-DBE subcontractor/subconsultant quote submitted to the bidder when a non-DBE subcontractor/subconsultant was selected over a DBE for work on the contract, even if the bidder elects to perform the item(s) of work themselves.
Construction Projects - The bidder/offeror must present the required information under sealed bid procedures, as a matter of responsiveness, or with initial proposals, under contract negotiation procedures no later than five business days after bid opening as a matter of responsibility. (DBE Form 5)
Consultant Projects - If your firm is unable to achieve the listed DBE goal, instead of the required DBE statement on letterhead, the DBE Form 5- Good Faith Efforts must be included with your firm's LOI. (DBE Form 5)
ODOT's Good Faith Determination Process
ODOT verifies that all information is complete and accurate and adequately documents the bidder/offeror's good faith efforts. If ODOT determines that the apparent successful bidder/offeror has failed to meet the requirements, prior to awarding the contract, ODOT will provide the bidder/offeror an opportunity for administrative reconsideration.
As part of this reconsideration, the bidder/offeror has the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so. The decision on reconsideration will be made by an official who did not take part in the original determination that the bidder/offeror failed to meet the goal or make adequate good faith efforts to do so.
The bidder/offeror has the opportunity to meet in person with the reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so.
ODOT will send the bidder/offeror a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to the Department of Transportation.
If at any time the DBE goal on the contract/project cannot be met, the Prime is required to seek all opportunities where DBE firms can be utilized. If additional DBE participation is not obtainable, submit the following information to ODOT on the DBE Form 5 immediately:
Construction Projects - The DBE Form 5 along with justification and attach evidence of good faith efforts.
Consultant Projects - The DBE Form 5 along with justification and attach evidence of good faith efforts.