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The New DOT Disadvantaged Business Enterprise Rule is Narrowly Tailored - Meeting the Adarand Test

Under the Supreme Court’s Adarand decision, an affirmative action program like the DOT DBE program must be narrowly tailored. This chart displays how the provisions of the new DOT DBE rule meet each of the narrow tailoring requirements that the Supreme Court has established.

New DOT DBE rule meets each of the narrow tailoring requirements that the Supreme Court has established
Narrow Tailoring Requirements Final Rule Provisions

Determination of goals by reference to the availability of qualified

firms in the relevant industries

Overall goals represent the level of DBE participation a recipient would expect absent discrimination, and must be based on evidence of the availability of ready, willing and able DBEs in the local market area

Use of race-neutral alternatives

Contract goals are not required on every contract. Recipients must meet as much as possible of their overall goals by using race-neutral measures, like outreach and technical assistance. They should use race-conscious measures, like contract goals, only to make up the difference.

Limit use of rigid numerical mechanisms used to remedy discrimination

Quotas are flatly prohibited. The use of set-asides is strictly limited to circumstances dealing with especially egregious cases of discrimination where no other mechanism has worked to remedy the situation.

Availability of waiver mechanisms

Regulatory requirements: Recipients may apply for a program waiver to carry out their DBE programs in innovative ways.

Contract goals: A contract goal is waived if bidder demonstrates good faith efforts to meet the goal.

Use of factors other than race in determining program eligibility

Eligibility is based on social and economic disadvantage. To ensure that only genuinely disadvantaged individuals participate, there is a $750,000 personal net worth cap.

The certification of any firm is subject to challenge by recipients, DOT, and third parties.

Simplification of certification process and eligibility standards for white males.

Duration of the program and periodic review

Program must be reauthorized by Congress in 2004.

Firms leave program if they grow too large; individuals leave the program if they become too wealthy.

Degree of burden on non-DBEs

Recipients must fashion measures to address over-concentration of DBEs in a given field, if it becomes a problem.

New certification provisions reduce burdens on all participants

Other aspects of narrow tailoring

Recipients have flexibility to craft their own goal-setting mechanisms to reflect local conditions and use the best locally available data.

Certification standards have been improved, with ownership and control tests more focused, to make sure program is not over-inclusive.

Last updated: Friday, October 21, 2016