Presumed Disadvantaged Groups: Changes on Findings of Social and Economic Disadvantage in the DBE Program

Preliminary Note: On Tuesday, April 9, 2024, the United States Department of Transportation issued a final rule that modernized the Disadvantaged Business Enterprise (DBE) program and the Airport Concessions DBE (ACDBE) program regulations. Review a copy of the final rule. The changes will go into effect on May 9, 2024. This blog is one in a series highlighting the changes and updates found in this final rule.

It has always been the case that certain groups are presumed socially and economically disadvantaged for purposes of qualifying for the DBE program (and that others could make individual showings of disadvantage). Over the years, there have been many instances of certifying agencies questioning whether an individual owner is a member of one those groups. The updated regulations make that process clearer.

Under the regulations, individuals who are women, Black American, Hispanic American, Native American, Asian Pacific American or Subcontinent Asian Americans are rebuttably presumed to be socially and economically disadvantaged.

The updated 49 C.F.R. § 26.67 make it clear that certifiers may not question claims of group membership as a matter of course. They also may not impose a disproportionate burden on members of any particular group- there have been occasions where certifiers have placed a higher burden of showing group membership upon individuals of certain ethnic backgrounds.

If a certifier has a well-founded reason to question an owner’s claim of group membership, it now must email a written explanation of its reasons to the group owner. That email must instruct the owner to provide evidence that they held themselves out publicly as a member of the group for “a long period of time” prior to applying for certification, and that the relevant community considers the individual a member. Notably, “a long period of time” is not defined.

After receiving the email, the owner has 20 days to provide the evidence, then the certifier has 30 days to make a decision. If the certifier determines that the owner has not met the burden of proof showing group members, it must issue a written decision specifically referencing the evidence of record that it relied upon and give a detailed explanation of why the evidence was insufficient. It must also let the owner know of the right to appeal to the USDOT.

This new process helps deal with what has, at times, been a pervasive problem among certain certifying agencies. Setting forth a specific process that must be followed will help protect more individuals from the expense, stress, and time consumption brought by the unwarranted scrutiny.

If your company has questions about how these new regulations, or about DBE or ACDBE certification generally, please contact Danielle Dietrich, Esq. at ddietrich@potomaclaw.com or 412-449-9141.

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