At the beginning of the month, the US Department of Transportation issued a new Interim Final Rule requiring the recertification of all businesses certified through the Disadvantaged Business Enterprise (“DBE”) and Airport Concession Disadvantaged Business Enterprise (“ACDBE”) programs. My earlier blog post offers a more detailed breakdown of that rule and the guidance issued alongside it.
On October 24, 2025, the USDOT issued answers to Frequent Asked Questions about the change. While it does not give us all of the answers, it does help clarify some of the issues that have had had DBEs, ACDBEs, and certifying agencies clamoring for information over the last few weeks.
Recertification: Firms Should Seek Recertification in their Home State (JOC) First
One of the most confusing issues that arose out of the final rule was whether DBEs and ACDBEs must seek recertification in every state where they are certified. The guidance issued directs firms to first get recertified by the Unified Certification Program (UCP) in their jurisdiction of original certification (JOC, or home state).
After Certification in JOC, Apply Elsewhere Via Interstate Certification
The guidance directs certified firms to apply to additional states via the interstate certification process after obtaining approval in their JOC. Read my prior blog post to learn more about the current interstate certification procedures.
No Deadlines Set By USDOT
Each state must set its own deadlines. The USDOT has not set a deadline by which the personal narratives must be submitted, nor has it established a date by which the review of the personal narratives must be completed- only that it takes place “as soon as practicable.”
Appeal Rights
The guidance clarified that firms that are decertified through reevaluation may appeal to DOT under 49 CFR § 26.89. However, it offers no detail on how this process will work, considering that the IFR states that traditional decertification procedural requirements will not be required.
What Happens to Contracts: Projects Advertised, Let, or Awarded
If a contract has been advertised with a DBE goal but bids have not yet opened, recipients must amend the advertisement to remove the goal.
If bids have opened but the contract is not yet awarded, recipients must take appropriate action to zero out the goal. DOT will allow recipients to amend contracts without readvertising, but state law may still require recompeting.
Contracts executed before October 3, 2025, are not required to be modified now; however, DBE participation on those contracts cannot be counted toward contract or overall goals until UCP reevaluation is completed. If all DBEs on such contracts are recertified under the new standards, no further action is needed. If a DBE is not recertified, the recipient must take appropriate action to discontinue the effect of an unconstitutional certification; failure to do so may result in DOT withholding payments on the affected contract.
For design–build projects with open-ended DBE performance plans, proceed if DBE subcontracts were signed prior to October 3, 2025, and note that termination or reduction of a DBE requires recipient consent and a showing of good cause under 49 CFR § 26.53. Where a DBE goal exists for a design–build phase but no DBE awards have been made, recipients should zero out the goal.
What Continues Unchanged During Reevaluation
Key protections and requirements remain in force. The termination provisions in 49 CFR § 26.53 still apply, meaning primes cannot terminate or reduce a DBE’s scope without prior written consent and good cause, including a post-reevaluation change in eligibility. Prompt payment requirements in 49 CFR § 26.29 remain fully applicable: primes must pay subcontractors within 30 days of receiving payment and release retainage within 30 days of satisfactory completion. Standard nondiscrimination clauses under 49 CFR §§ 23.9 and 26.13 must continue to be included in all contracts.
If your company needs assistance with DBE or ACDBE certification or recertification, please contact Danielle Dietrich, Esq. at ddietrich@potomaclaw.com or 412-449-9141.
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