Disadvantaged Business Enterprise (DBE)
Good Faith Effort Process
When ODOT has established a DBE contract goal, ODOT awards the contract only to a bidder/consultant who makes responsible good faith efforts to meet or exceed the goal. ODOT determines that a bidder/consultant has made good faith efforts if the bidder/consultant 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/consultant does document adequate good faith efforts, ODOT must not deny award of the contract on the basis that the bidder/consultant 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 a DBE Form 6 with:
- 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.
Consultant Projects - After negotiation (DBE Form 6 - DBE Commitments)
Construction Projects - At the time of bid in Bidexpress (DBE Form 6 - DBE Commitments)
If the contract DBE goal is not met, the documentation of Good Faith Efforts must include copies of each DBE and non-DBE subcontractor/sub-consultant quote submitted to the bidder when a non-DBE subcontractor/sub-consultant was selected over a DBE for work on the contract, even if the bidder elects to perform the item(s) of work themselves.
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 - Good Faith Efforts)
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 at the time of bid. (DBE Form 5 - Good Faith Efforts)
ODOT's Good Faith Determination Process
ODOT verifies that all information is complete and accurate and adequately documents the bidder/consultant's good faith efforts.
As per 49 CFR Part 26, Appendix A, the following is a list of types of actions which can be considered as part of the bidder/consultant's good faith efforts to obtain DBE participation. It is not intended to be a mandatory checklist, nor is it intended to be exclusive or exhaustive.
- Solicit through all reasonable and available means the interest of all certified DBEs that have the capability to perform the work of the contract. This may include attendance at pre-bid and business match-making meetings and events, advertising and/or written notices, posting of Notices of Sources Sought and/or Request for Proposals, and written notices to all DBEs listed in ODOT’s Directory.
- The bidder should solicit this interest as early in the acquisition process as practicable to allow the DBEs to respond to the solicitation and submit a timely offer for the subcontract. The bidder should determine with certainty if the DBEs are interested by taking appropriate steps to follow up initial solicitations.
- Selecting portions of the work to be performed by DBEs in order to increase the likelihood that the DBE goals will be achieved.
- Providing interested DBEs with adequate information about the plans, specifications, and requirements of the contract in a timely manner.
- Negotiating in good faith with interested DBEs. Incur reasonable additional costs to obtain DBE Participation. Price alone is not a sufficient reason to reject a DBE. The bidder must demonstrate that the cost is excessive and unreasonable. Reasonableness is evaluated not only in terms of the dollar and percentage difference from one bidder to another, but also in light of the percentage of the total contract.
- As necessary, revise the DBE participation plan in order to obtain DBE participation. In the event the contractor is unable to obtain DBE participation under the original plan or is receiving DBE quotes in other areas, it should consider revising the plan, unbundling and forgoing self-performance or portions of the contract.
- Provide assistance to DBEs. Assistance may include providing the DBE help to understand technical and contract requirements of the project, obtain bonds and insurance for the project, and connect with others in the industry to obtain supplies, equipment or other materials for the project. The bidder should be careful not to compromise the independence or potential commercially useful function of the DBE, therefore in no instances should bidders arrange supply purchases, negotiate on behalf of a DBE, lend equipment to DBEs, or directly pay DBE employees.
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.
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:
Consultant Projects - The DBE Form 5 along with justification and attach evidence of good faith efforts.
Construction Projects - The DBE Form 5 along with justification and attach evidence of good faith efforts.
The Oklahoma Department of Transportation (ODOT) ensures that no person or groups of persons shall, on the grounds of race, color, sex, religion, national origin, age, disability, retaliation or genetic information, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any and all programs, services, or activities administered by ODOT, its recipients, sub-recipients, and contractors. To request an accommodation please contact the ADA Coordinator at 405-521-4140 or the Oklahoma Relay Service at 1-800-722-0353.