Disadvantaged Business Enterprise (DBE) owners should be paying close attention to the BUILD America 250 Act—a sweeping surface transportation reauthorization bill introduced in the House of Representatives on May 17, 2026. This legislation would reauthorize and strengthen the federal DBE program that has helped firms like yours compete for federally funded transportation contracts. Here is a summary of the bill in its current form, and what it would mean for your business.
Congress Reaffirms Its Commitment to the DBE Program
The BUILD America 250 Act opens its DBE provisions by stating that despite the progress the program has achieved over the years, social and economic disadvantage and related barriers continue to pose significant obstacles for businesses owned by socially and economically disadvantaged individuals seeking to do business in federally assisted surface transportation markets. Congress has reviewed extensive documentation—from hearings and roundtables to scientific reports, news stories, and lawsuits—and concluded that there is a compelling need for the continuation of the DBE program. In other words, they recognize that the playing field is still not level, and the DBE program remains an essential tool for addressing that imbalance.
The 10 Percent National Aspirational Goal
Under the bill, a national aspirational goal of at least 10 percent of the amounts made available for programs under Titles I, II, III, and VI of the Act, as well as Section 403 of Title 23, must be directed through good faith efforts toward small business concerns owned and controlled by socially and economically disadvantaged individuals. This means that state departments of transportation and other recipients of federal transportation funding would continue to set and pursue DBE participation targets. For your firm, this translates into continued contracting opportunities on highway, bridge, transit, and other surface transportation projects funded with federal dollars.
New Objective Criteria for Determining Eligibility
Of particular interest for DBE owners is the requirement that the Secretary of Transportation (within 180 days of enactment) develop and publish objective criteria for how States and unified certification programs will evaluate whether an individual qualifies as socially and economically disadvantaged. The criteria must allow individuals to demonstrate disadvantage by submitting evidence of the types of discrimination prohibited under Federal law. They must also allow individuals to submit evidence of specific instances of economic hardship, systemic barriers, and denied opportunities that impeded educational progress, employment opportunities, or business opportunities, including access to capital.
What does this mean for you? Under the current draft, it sounds like DBEs could be in store for yet another round of recertification under a different set of criteria. Under last fall’s Interim Final Rule, every DBE has been going through a reevaluation process to prove individual disadvantage that cannot rely on race or sex. But the Bill expressly states that you could submit evidence of the types of discrimination prohibited under Federal law (which would include both race and sex).
Updated Size Standards
The bill defines a "small business concern" by reference to the Small Business Act, but excludes any firm or group of firms controlled by the same disadvantaged individual or individuals with average annual gross receipts exceeding $31,840,000 over the preceding three fiscal years, as adjusted annually for inflation. If your firm is approaching this threshold, you should monitor your three-year rolling average closely. The inflation adjustment ensures that the cap keeps pace with rising costs, but firms experiencing rapid growth should plan ahead for the possibility of graduating from the program.
Uniform Certification Requirements
The Secretary is directed to establish minimum uniform criteria for certifying DBEs, and these criteria include on-site visits, personal interviews with personnel, inspection of licenses, analyses of stock ownership, listings of equipment, analyses of bonding capacity, listings of work completed, examination of principal owners' resumes, analyses of financial capacity, and analyses of the type of work preferred. This is generally in line with how the program previously operated. However, the Secretary may wish to make how the states review all of this information more uniform than it has been in the past.
States Must Track and Report DBE Activity
Under the Bill, each State would be required to annually survey and compile a list of certified DBE firms, notify the Secretary of the number of newly certified firms, and provide other information the Secretary requires. States must also report on DBE awards, commitments, and achievements; the progress of unified certification programs in recertifying or decertifying firms; and the number of firms recertified or decertified in fiscal years 2026 through 2031.
Prompt Payment Remains a Priority
If you have ever waited too long to get paid after completing work on a federal transportation project, you are not alone. The BUILD America 250 Act includes a Sense of Congress that the Secretary should take additional steps to ensure that recipients comply with the DBE prompt payment rule under 49 CFR § 26.29. Congress specifically calls for the Department to increase its ability to track and keep records of complaints and to make that information publicly available. While a Sense of Congress is not legally binding, it signals that lawmakers are aware of the payment delays that disproportionately burden small and disadvantaged firms, and it puts pressure on the Department and prime contractors to do better.
Protection Against Unconstitutional Application
The bill includes a safeguard ensuring that no entity will be penalized for failing to meet the 10 percent goal if a federal court has issued a final order finding that the requirement or its implementation is unconstitutional. This is likely a safeguard put in light of the previous legal challenges mounted against the DBE program.
What Should You Do Now?
As this legislation moves through the congressional process, DBE owners should pay attention. First, lobby your federal representatives to let them know how important the DBE program has been to your business and why they should pass this bill. Second, continue to keep organized your financial records, project histories, and business documentation in anticipation of potentially more certification reviews. Third, monitor your firm's three-year average gross receipts to understand where you stand relative to the $31,840,000 size cap. Fourth, if you experience payment delays on federally funded projects, file a complaint—Congress is signaling that it wants better tracking and accountability. Finally, stay informed about the bill's progress through Congress, as the final enacted version may differ from the introduced text.
If your company needs assistance related to DBE certification or recertification, please contact Danielle Dietrich, Esq. at ddietrich@potomaclaw.com or 412-449-9141.
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