Tappan Zee Bridge, New York State Thruway Authority Tappan Zee Bridge, New York State ThruwayAuthority 

DISADVANTAGED BUSINESS
 

ENTERPRISE PROGRAM
 

Administration and Oversight on Projects with
 

Alternative Contracting & Procurement Methods
 

HANDBOOK 
NOTICE 

This document is disseminated under the sponsorship of the U.S. 

Department of Transportation (USDOT) in the interest of information 

exchange. Information provided in this document is not official 

guidance, and does not constitute a standard, specification, or 

regulation. The U.S. Government assumes no liability for the use of 

the information contained in this document. 

The U.S. Government does not endorse products or manufacturers. 

Trademarks or manufacturers’ names appear in this report only 

because they are considered essential to the objective of the document. 

QUALITY ASSURANCE STATEMENT 

The Federal Highway Administration (FHWA) provides high-quality 

information to serve Government, industry, and the public in a manner 

that promotes public understanding. Standards and policies are used 

to ensure and maximize the quality, objectivity, utility, and integrity of 

its information. FHWA periodically reviews quality issues and adjusts its 

programs and processes to ensure continuous quality improvement. 

2 
CONTENTS


INTRODUCTION 4
 

Handbook Content and Structure 7
 

What is Alternative Contracting 8
 

FIGURE I: DEFINITIONS 9
 

A Brief Discussion on Transfer of Risk 12
 

The Projects 13
 

FIGURE II: PROJECT LIST 13
 

PRE-AWARD/ PROCUREMENT 17
 

Goal Setting 19
 

FIGURE III: TIGER FUNDING CHART 23
 

FIGURE IV: GOAL SETTING IN ACM– AT A GLANCE 25
 

Implementation of DBE Program in Pre-Award Documents: 30
 

RFQ, RFP, PMP, ITP, DBEPP 37
 

FIGURE V: DBE AND ACM DOCUMENTS– AT A GLANCE 37
 

Outreach and Education 41
 

Best Practices to Encourage Contrasted with Pitfalls to Avoid 43
 

FIGURE VI: PITFALL AVOIDANCE CHART 43
 

POST-AWARD/ DURING CONSTRUCTION 46
 

Monitoring or Oversight Plans (49 CFR 26.37) 48
 

CUF and Counting (49 CFR 26.55) 53
 

Prompt Payment and Retainage Return (49 CFR 26.29) 57
 

GFE (49 CFR 26.53) 59
 

Reporting on Uniform Reports of DBE Awards, Commitments 64
 and Payments (49 CFR 26.11 , Appendix B) 

Outreach and Education 65
 

Best Practices to Encourage Contrasted with Pitfalls to Avoid 66
 

FIGURE VII: PITFALL AVOIDANCE CHART 66
 

FINAL ACCEPTANCE AND BEYOND 68
 

Beyond Construction 70
 

Best Practices to Encourage Contrasted with Pitfalls to Avoid 71
 

FIGURE VIII: PITFALL AVOIDANCE CHART 71
 

RESOURCES 72
 

FIGURE IX: ACRONYMS 74 


IN CLOSING 75
 

3 
INTRO
 

DUCTI
 

ONINTRODUCTION 

The Handbook includes not only notable practices, but 

lessons learned, pitfalls to avoid, tips for enhancing 

compliance, and a list of helpful resources. 

4 
Tappan Zee Bridge, New York State Thruway Authority Tappan Zee Bridge, New YorkState ThruwayAuthority

INTRODUCTION
 

In the highway construction industry, the need to provide 

better facilities with fewer resources and in less time constantly 

drives innovation and experimentation. For the past several 

years, methods of project delivery in the Federal Highway 

Administration (FHWA) Federal-aid program have expanded 

beyond the traditional design-bid-build contracting model. 

However, the Disadvantaged Business Enterprise (DBE)1

program and corresponding guidance are largely structured 

around this type of standard procurement. For example, in 

the context of design-bid-build, successful contractors are 

typically the lowest responsible bidder, and in the case of a DBE 

contract goal, have either met the goal through sufficient DBE 

subcontracting or through demonstrating adequate good faith 

efforts prior to contract award. The DBE program1 regulations 

were revised in 2014, to require that all bidders present their 

DBE commitments and good faith efforts with their bid or within 

no more than 5 days after bid opening. Although this rule is 

straightforward to apply in the context of a design-bid-build 

oversight contract, practitioners may find this rule is not easily 

applied to many alternative contracting models. In some of the 

alternative contracting models, such as design-build on multiyear projects, the design is typically only minimally complete 

when the request for proposals is issued. Therefore, it is difficult 

for bidders to identify all of the subcontracting opportunitiesthat 

may arise throughout the life of the contract. 

1 DBE program regulations are found in 49 CFR Part 26. 

5 
INTRODUCTION 

As innovation in financing, contracting and partnering expand, civil rights and other 

oversight practitioners encounter other challenges in the field, such as providing effective 

oversight and ensuring compliance on projects with multiple and non-traditional partners. 

Despite these challenges, civil rights and oversight practitioners are still tasked not only 

with ensuring that regulatory requirements are met, but also that DBEs remain adequately 

positioned for work and have meaningful opportunities to compete for opportunities on 

these innovative projects. 

The FHWA Office of Civil Rights (HCR) is pleased to provide this document (the Handbook) 

as a tool for FHWA civil rights and other oversight practitioners. The Handbook was 

developed in cooperation with a FHWA workgroup comprised of Division oversight 

practitioners, the Resource Center, and the Offices of Infrastructure, Chief Counsel 

(HCC), and Civil Rights (the Workgroup). 

The practices shared in this Handbook are based solely upon information 

obtained through interviews with and documents provided by FHWA staff 

and reflect their oversight experiences of States’ implementation of the DBE 

program in alternative contracting and procurement methods. 

Further, the Handbook would not be possible without the contributions from staff from the 

Build America Bureau, HCC, and numerous Division offices, all of whom have current or 

past experience in alternative program delivery and/or procurement methods and were 

generous with their time and suggestions. The Handbook is not a list of directives, nor 

is it to be considered official guidance for FHWA recipients. Rather, it is intended to be 

a practical tool for providing effective risk-based stewardship and oversight of the DBE 

program on program delivery and procurement methods beyond the traditional designbid-build model around which the governing regulations were primarily developed. The 

Handbook includes not only notable practices, but lessons learned, pitfalls to avoid, 

tips for enhancing compliance, and a list of helpful resources. In addition to reviewing 

the Handbook, HCR encourages FHWA practitioners to consult with HCR and HCC for 

guidance on implementation of the DBE program on alternative contracting projects. 

6 
CONTENT and
 INTRODUCTION / CONTENT AND STRUCTURE 

STRUCTURE CONTENT AND STRUCTURE 

In developing this Handbook, the Workgroup collaborated with FHWA’s Offices of 

Infrastructure and Innovative Program Delivery to identify projects that constituted 

alternative contracting methods, that included DBE participation, and that were complete 

or significantly complete. The Workgroup then met with the relevant Division oversight 

practitioners to identify salient information on how the DBE program requirements were 

considered, promoted, tracked, inspected, and reviewed on the selected projects. While 

this Handbook shares noteworthy practices and identifies them by State and Division, 

it does not similarly name those that were courageous enough to share missteps and 

challenges. Again, the purpose of this Handbook is to share information in an effort to 

improve DBE performance and compliance even as project delivery and procurement 

methods continue to evolve. As such, this is intended to be a living document to be 

periodically revised to reflect these evolutions and innovations. 

With a few exceptions, this Handbook is broken into three parts that 

follow the life of a highway construction project: 

1. Pre-Award/Procurement 

2. Post Award/During Construction 

3. Final Acceptance 

Within each phase, this Handbook discusses the various types of alternative contracting 

and/or procurement methods (referencing specific projects where possible), describes 

practices used, identifies strengths and challenges encountered, and provides information 

on how to obtain additional information or assistance. 

7 
 

 

ALTERNATIVE INTRODUCTION / ALTERNATIVE CONTRACTING 

WHAT IS CONTRACTING
 ALTERNATIVE CONTRACTING?
 

Despite their progressive names, the concept of alternative
 

and innovative contracting is not new. In the 1990s, FHWA first
 

began supporting enhancements to the traditional design-bidbuild (D-B-B) method of highway construction contracting, 

in which price is the main criterion of award. Like FHWA, the 

industry and project owners recognized that numerous other 

factors like timeliness, quality, safety, and livability are just 

as important as project cost. To increase the value of these 

formerly ancillary aspects of highway construction and to 

provide an ongoing incentive for newer, better, and more 

cost-effective methods of project delivery, Congress first 

authorized the use of design-build (D-B) contracting in the 

text of the 2002 authorization legislation, TEA-21. Subsequent 

transportation bills like SAFETEA-LU strengthened the use of 

D-B by eliminating cost thresholds and permitting award prior 

to completion of processes under the National Environmental 

Policy Act of 1969 (NEPA). Both MAP-21 and the FAST Act 

placed further emphasis on streamlining project delivery and 

supporting innovation and acceleration of project delivery. At 

its most basic level, alternative contracting is another way of 

referring to any highway construction contracting process 

other than awarding a construction contract to a prime 

contractor based primarily on low bid. 

Innovative project delivery generally involves multiple 

stakeholders beyond the owner and the design-builder or prime 

contractor. Innovative project delivery may also extend well 

beyond the life of the average highway construction project, 

requiring the builder to design, build, finance, operate, and 

maintain the facility for a fixed period of time. 

For the purposes of this Handbook, all projects will be referred 

to as Alternative Contracting Method (ACM) projects, with 

specifics added as needed. 

If the practitioner finds the terms 

and concepts in this Handbook 

entirely unfamiliar, then some 

prerequisite materials might help. 

Review the Reference section of 

the Handbook, particularly the 

Contract Administration Core 

Curriculum, which provides 

foundational information on 

Federal-aid contracting. 

8 
FIGURE I
 INTRODUCTION / DEFINITIONS / FIGURE I 

DEFINITIONS 

Refer to the list below, which includes the acronyms, definitions, and resource links 


for the various terms and concepts. 

Alternative Contracting Methods &

ACM 

Any contract delivery or procurement method that 

is not design-bid-build or traditional Federal-aid. 

Typically refers to D-B, Construction Manager 

General Contractor (CM/GC), Public-Private 

Partnership (P3), or TIFIA. 

Alternative Technical Concepts &

ATC 

Allows contractors to submit innovative or costsaving proposals that are equal to or better than the 

owner’s design or criteria. May be used on D-B-B, 

D-B, CM/GC, etc. 

Construction Manager/General Contractor or 

Construction Manager at Risk &

CM/GC OR CMR, CMAR 

Consists of two phases – design and construction — 

where the construction manager (working alongside 

the designer) may become the general contractor 

(builder) if the owner and independent estimator 

agree that the construction manager’s suggested 

design and price are fair. 

Concessionaire &

Another term for Developer, the private entity in a P3 

that is contractually bound to design, build, finance, 

operate, and maintain a facility. 

Design-Build &

D-B 

Construction contract procurement where the owner 

considers bids from design-build teams and may 

award the contract based on best value--generally 

thought to save money, time, and reduce the risk of 

the project owner. 

Design-Bid-Build &

D-B-B 

Traditional procurement of a highway construction 

contract after the owner has developed the design 

and is ready to fund construction. 

Design-Build-Finance-Operate and Maintain &

DBFOM 

Project in the form of a P3 where a private Concessionaire 

or Developer not only finances the project, but operates 

and maintains it for a fixed period of time in exchange 

for predetermined progress or future payments. 

DBE Performance Plan 

DBE PP 

Sometimes called the DBE Plan, the DBE Performance 

Plan is a document submitted by proposers that details 

how they will achieve the DBE goal or meet specified 

requirements. Levels of detail and due dates vary, 

although typically the owner requires the plan to be 

submitted with the Request for Proposals (RFP) in 

response to the Instructions to Proposers. 

Developer &

A term for the private entity in a P3 that is contractually 

bound to design, build, finance, operate, and maintain 

a facility. 

Instructions to Proposers 

ITP 

The owner’s directions for the preparation and 

submittal of information by proposers in response 

to an RFP, generally including the requisite forms 

or documents. 

9 
 

INTRODUCTION / DEFINITIONS / FIGURE I 

Major Project &

ACM MP 

Formerly known as “mega” projects, these are 

Federal-aid projects with a total cost of more than 

$500 million. 

Owner 

Used in this Handbook, the owner is the entity that 

owns or is responsible for the transportation facility, 

regardless of whether it receives the Federal-aid. 

While the owner might be the State Department 

of Transportation, in Alternative Contracting/ 

Procurement the owner could be a partner agency, 

organization, or private entity. This is important 

because the owner is ultimately responsible for 

enforcing compliance of DBE requirements. 

Practitioner 

While DBE compliance on Alternative Contracting/ 

Procurement contracts often will be the responsibility 

of the FHWA Division Civil Rights Officer, this is not 

always so. Division leadership or engineering or other 

staff assigned to project oversight might assume 

the role of a Practitioner in ensuring compliant 

implementation of the DBE program. 

Project Management Plan &

PMP 

Project Management Plan Under 23 U.S.C. 106(h), a 

PMP is required for all Federal-aid projects over $500 

million (“major projects”). The PMP describes, among 

other things, project management and oversight, 

how the project will be delivered, various roles and 

responsibilities, and how disputes will be resolved. 

The FHWA Division Office is responsible for approving 

the PMP. 

Public-Private- Partnership &

PPP OR P3 

Contractual agreements between public and private 

entities where a share of the financing, delivery, and 

risk of a highway construction project belongs to the 

private sector. Private partners typically provide a 

lump sum amount up-front that will be paid back by 

the owner with interest. 

Risk Based Stewardship and Oversight &

RBSO 

The FHWA’s methodology for effectively delivering 

larger and more complex Federal-aid programs, with 

fewer resources. The RBSO decisions are risk-based, 

data-driven, value-added, and consistent. 

Recipient 

Used in this Handbook and unless otherwise 

specified, the recipient is the entity receiving the 

USDOT financial assistance, whether or not they 

own the transportation facility. Recipients may be 

State Departments of Transportation (State DOTs); 

Local Public Agencies (LPAs); Transportation 

Authorities; Institutions of Higher Education (IHEs); 

Metropolitan Planning Organizations (MPOs) or 

even private entities. Recipients have an important 

role in demonstrating Federal-aid eligibility and 

contract oversight. However, the owner is ultimately 

responsible for the compliant implementation of the 

DBE program on the contract or project. 

Request for Proposals &

RFP 

A notice to bidders from a project owner or 

recipient which describes contract or project 

parameters and specifications, and solicits price 

and technical proposals. 

10 
INTRODUCTION / DEFINITIONS / FIGURE I 

Request for Qualifications &

RFQ 

The primary purpose of an RFQ is to determine best qualified proposers. 

This is an opportunity for the owner or recipient to share its vision 

of the project and provides potential bidders with an opportunity to 

respond with how their experience can meet that vision.2The RFQs often 

request past DBE program compliance history from the proposers. The 

RFQ process typically selects three to five proposers. These selected 

proposers will be allowed to submit an RFP and ultimately, 

one will be awarded the contract. The selection of short-listed firms is 

based on stated evaluation criteria. 

Transportation Investment Generating 

Economic Recovery &

TIGER3

A USDOT discretionary grant program originally authorized by the 

American Recovery and Reinvestment Act of 2009 (ARRA) and continuing 

through annual rounds of funding for surface transportation projects. The 

TIGER grants are sometimes awarded to local agencies as direct grantee/ 

recipients. The TIGER projects may or may not be examples of Alternative 

Contracting, but given the funding and the challenges resulting from myriad 

of possible recipients, they are examples of Alternative Procurement. 

Transportation Infrastructure Finance 

and Innovation Act &

TIFIA 

A Federal credit assistance program that provides access to funding 

at generally favorable interest rates and flexible repayment terms. 

Loans are “sized” so that only Design and Build costs are TIFIA eligible. 

Operations and Maintenance costs are not. 

2

 See Federal Aid Essentials at www.fhwa.dot.gov/federal-aidessentials/companionresources/81dbproc.pdf.
 

3

 TIGER now called Better Utilizing Investments to Leverage Development (BUILD) Sixth Street Viaduct, City of Los Angeles
 

11 
 

TRANSFER
 A BRIEF DISCUSSION ON 

INTRODUCTION / TRANSFER OF RISK 

OF RISK TRANSFER OF RISK 

As part of efforts to oversee DBE and other civil rights contract requirements on ACM 

projects, the FHWA oversight practitioner might sometimes meet with resistance from 

the owner, developer, design-builder, or other project stakeholders on the subject of risk 

transfer. A State DOT may choose ACM, in part, because it believes that in so doing it 

transfers the risks associated with the project to the design-builder or CM/GC firm. For 

example, an owner may not ensure that it has adequate staff for DBE oversight because it 

believes that it has delegated these responsibilities to the developer or other third-party 

through contract. The misunderstanding lies in the owner’s belief that all associated risks 

may legally be transferred to the project developer or builder. 

As primary recipient to Federal-aid, the owners bears the responsibility of 

ensuring that the DBE program received effective oversight and must 

demonstrate this by producing evidence or reports upon request by FHWA. 

No matter how clear the understanding of the parties as to how responsibility will be 

shared or delegated, the fact is that the primary recipient cannot contract away its civil 

rights compliance responsibilities. 

All parties will avoid expensive, lengthy, and sometimes contentious interaction by 

making sure that FHWA expectations are clearly communicated to the owner and 

developer, or potential developer, as early in the process as possible. For example, a 

project developer may wish to hire a consultant to perform commercially useful function 

(CUF) reviews of DBE performance. While there is nothing wrong with this on its face, 

an owner must understand that the developer’s consultant is not an independent party 

upon whose judgment it can ultimately rely. Owners can either rely on their own staff or 

supplement their workforce with consultants to perform oversight as well as audit the 

project developer’s findings. Further, the owner bears the ultimate responsibility for the 

enforcement of prompt payment and return of retainage provisions for all subcontractors, 

despite its lack of direct contractual relationship with the parties. Thus, the oversight 

practitioner should be an early reviewer in project procurement and management 

documents, be responsible for the project reviews, coordinating visits, and requests for 

information. 

12 
 

FIGURE II
 INTRODUCTION / PROJECTS / FIGURE II 

THE PROJECTS 

This Handbook is based upon field experience, drawing from ACM projects nationwide 

that are frequently cited throughout the document. 

To avoid confusion and to provide a resource for practitioners wanting more information, see the following project 

list. Please note that the links are active as of the publication of the Handbook, but may change or be removed. 

Those with difficulties obtaining additional project information should contact the applicable Division Office. 

Six Street Viaduct Project, City of Los Angeles 

Six Street Viaduct Project &

Replacement of the 1932 Los Angeles River bridge on 

Sixth Street east of downtown LA. 

California $261M Local CM/GC 

LOCATION AMOUNT FUNDING TYPE 

Presido Parkway, FHWA 

Presidio Parkway &

Design-Build-Finance-Operate-Maintain project to 

reconstruct Doyle Drive, the 1936 roadway providing 

south access to the Golden Gate Bridge. 

California $272M TIFIA P3 

LOCATION AMOUNT FUNDING TYPE 

Twin Tunnels Widening. Source: FHWA Twin Tunnels Widening, FHWA 

Twin Tunnels Widening &

Added capacity and improved geometry for 3 miles 

of eastbound I-70 on either side of and through the 

Twin Tunnels. 

Colorado $103M Federal-aid CM/GC 

LOCATION AMOUNT FUNDING TYPE 

US 6/I-25, FHWA 

US 6/I-25 

Reconstruction of 2 miles of major freeway on the 

outskirts of downtown Denver, including, 8 bridges, an 

interchange, a public park, and pedestrian features. 

Colorado $120M Federal-aid D-B 

LOCATION AMOUNT FUNDING TYPE 

13 
Installed Pedestrian Bridge no. 1 on Daniels Parkway.

Installed Pedestrian Bridge no. 2 on Daniels Parkway.

INTRODUCTION / PROJECTS / FIGURE II 

I-595 Express, FHWA 

I-595 Express &

Design-Build-Finance-Operate-Maintain for 35 years, 

the 10.5 miles of tolled roadway between I-75 and I-95 

in Broward County. 

Florida $1.8B TIFIA P3 

LOCATION AMOUNT FUNDING TYPE 

Port of Miami Tunnel, FHWA 

Port of Miami Tunnel &

Design-Build-Finance-Operate-Maintain for 35 years, the 

POMT, one of only two tunnels in Florida, and a strategic 

link for freight traffic between the Port of Miami and I-395. 

Florida $1.2B TIFIA P3 

LOCATION AMOUNT FUNDING TYPE 

Twin Tunnels Widening. Source: FHWA Lee County Complete Streets, FHWA 

Twin Tunnels Widening. Source: FHWA Intercounty Connector, FHWA 

Twin Tunnels Widening. Source: FHWA I-285 & SR 400, FHWA 

Lee County Complete Streets &

A project sponsored and overseen by an MPO that 

connects existing sidewalks and bike paths. 

Florida $8.04M TIGER D-B 

LOCATION AMOUNT FUNDING TYPE 

I-285 & SR 400 &

Provision of new flyovers and collector/distributor 

lanes to relieve congestion along I-285 and SR-400. 

Georgia $460M Federal-aid P3 

LOCATION AMOUNT FUNDING TYPE 

Intercounty Connector (ICC) &

New construction of 18-mile multimodal east-west, 

six lane tolled facility linking I-270/I-370 and 

I-95/US-1 Corridors. 

TIFIA, GARVEE, 

Maryland $2.5B and Federal-aid D-B 

LOCATION AMOUNT FUNDING TYPE 

14 
INTRODUCTION / PROJECTS / FIGURE II 

I 35E MN Pass, FHWA 

I-35E MN Pass Project &

Installation of MNPASS tolling system and MNPASS lanes 

along a 3.4 section of I-35 between St. Paul and Little Canada. 

Minnesota $98M Federal-aid D-B 

LOCATION AMOUNT FUNDING TYPE 

I-64 Daniel Boone Bridge, FHWA 

I-64 Daniel Boone Bridge &

Construction of a new bridge over the Missouri River 

between St. Louis and St. Charles Counties, replacing 

the 1935 structure. 

Missouri $130M Federal-aid D-B 

LOCATION AMOUNT FUNDING TYPE 

Twin Tunnels Widening. Source: FHWA Manchester Bridge, FHWA 

Manchester Bridge &

Replacement of a structurally deficient 1⁄2 -mile bridge on 

I-70 over the Manchester Trafficway, the Blue River, and a 

rail yard. 

Missouri $65M Federal-aid D-B 

LOCATION AMOUNT FUNDING TYPE 

Twin Tunnels Widening. Source: FHWA Carlin Tunnels Widening, FHWA 

Carlin Tunnels Widening &

Rehabilitation of approximately two miles of roadway 

through Carlin Tunnels area, seven miles east of Carlin and 

14 miles west of Elko. 

Nevada $31M Federal-aid CMAR 

LOCATION AMOUNT FUNDING TYPE 

Twin Tunnels Widening. Source: FHWA Memorial Bridge Replacement, FHWA 

Memorial Bridge Replacement &

Replacement of 1922 structure connecting Kittery and 

Portsmouth with a sleek, modern design that is reminiscent 

of the original. 

New Hampshire 

and Maine 

LOCATION 

$90M 

AMOUNT 

TIGER and 

Federal-aid 

FUNDING 

D-B 

TYPE 

15 
INTRODUCTION / PROJECTS / FIGURE II 

Goethals Bridge, FHWA 

Goethals Bridge &

Design-Build-Operate-Maintain the Goethals Bridge, 

replacing the 87- year-old structure that connects 

Staten Island and Elizabeth, NJ over the Arthur Kill. 

New York $937M TIFIA P3 

LOCATION AMOUNT FUNDING TYPE 

Tappan Zee Bridge4 &

Replacement of existing 1955 facility with a 3.1- mile, 

twin-span bridge over the Hudson River between 

Westchester and Rockland Counties. 

New York $3.14B TIFIA D-B 

LOCATION AMOUNT FUNDING TYPE I-6 Tappan Zee, NYS Thruway Authority 

Twin Tunnels Widening. Source: FHWA Horseshoe Project, FHWA 

Horseshoe Project &

Replacing the I-30 and I-35E bridges that cross Trinity 

River in Dallas, as well as interchange reconstruction. 

Texas $818M Federal-aid D-B 

LOCATION AMOUNT FUNDING TYPE 

Twin Tunnels Widening. Source: FHWA 1-495 Express Lanes, FHWA 

I-495 Express Lanes &

Design- Build-Operate-Finance-Maintain 14-mile, HOT lanes 

with two lanes in each direction on the Capital Beltway (I-495) 

and replacement of more than 50 bridges and overpasses. 

Virginia $1.9B TIFIA P3 

LOCATION AMOUNT FUNDING TYPE 

Twin Tunnels Widening. Source: FHWA I-95 Express Lanes, FHWA 

I-95 Express Lanes &

Design-Build-Operate-Maintain-Finance 29 miles of reversible high 

occupancy toll (HOT) lanes along the I-95/I-395 corridor between 

Fairfax and Stafford Counties in the northern Virginia suburbs of 

Washington, DC. The project will convert 20 miles of existing HOV

 lanes to HOT lanes; widen 14 miles of the existing reversible HOV 

lanes from two lanes to three lanes; and construct a nine-mile 

extension of the lanes to the south of their current terminus. 

Virginia $969M TIFIA P3 4

 Tappan Zee Bridge is now named The Governor Mario M. Cuomo Bridge LOCATION AMOUNT FUNDING TYPE 16 
PREAWARD

PRE-AWARD /
 

PROCUREMENT
 

17 
PRE-AWARD/


PROCUREMENT
 

Many civil rights practitioners report that traditionally they had little 

or no involvement with the DBE program on projects prior to award, 

generally to assist with goal setting or evaluation of good faith efforts 

(GFE). With the expansion of ACM, there is a growing need for early 

input and participation by civil rights practitioners, both at the recipient 

and Division levels. Interviews show that contractors and developers 

must understand the expectations of the owner and Division pertaining 

to the DBE program preferably before initial responses to RFPs 

are submitted and certainly before the contract is awarded. Clear 

expectations in contract language will inform the type of response 

submitted by prospective developers and set the stage for good 

communication throughout the project. Without knowing the rules up 

front, the owner is more likely to encounter resistance in complying 

with DBE requirements that were not anticipated during negotiations. 

The sheer size of many of these projects means that low DBE 

performance can impact whether a recipient meets its overall goal 

or an independently-set project goal. Further, because of the multiyear nature of many of these projects, identifying and using DBEs for 

a variety of work categories benefits not only the DBEs but also the 

entire industry. However, providing opportunities requires a keen eye 

to early identify all potential areas for participation. This section will 

discuss pre-award DBE program considerations in ACM and highlight 

some notable examples and important lessons learned. 

Sixth Street Viaduct, City of Los Angeles 

18 
 

 

 

 

GOAL PRE-AWARD / GOAL SETTING 

SETTING
 goals, however, must be used to the extent that a 

recipient projects that it will be unable to meet its 

overall DBE goal through exclusively race-neutral 

methods. In some circumstances, FHWA may permit 

or require a recipient to establish an overall DBE goal 

on a particular project. When a recipient determines 

that it is necessary to establish a contract goal 

or project goal, nothing is more critical to DBE 

compliance in ACM projects than setting contract 

or project goals that are reasonable, attainable, 

and narrowly tailored to account for all potential 

subcontracting opportunities and the capacity 

of DBEs in relationship to all firms in the relevant 

market area. To do so effectively, it is essential that 

civil rights practitioners play an important role in 

DBE goal setting. 

GOAL SETTING 

The DBE regulations do not require a recipient to 

set a DBE contract goal on every contract. Contract 

Part of narrowly tailored goal setting is assessing 

the number of DBEs within the relative market area 

that are certified to perform the various work items 

on the contract. This is not always an easy task. 

The successful practitioner should keep recipients 

focused on setting contract goals in line with factors 

identified in the DBE regulations5, such as the type 

of work involved, the location of the work, and the 

availability of DBE firms. For instance, when the 

Florida DOT, City of Miami and Miami-Dade County 

considered the $1.2 billion P3 to construct, operate, 

and maintain the Port of Miami Tunnel for 35 years, 

they quickly realized that ‘Harriet’, the largest soft 

ground tunnel boring machine in the U.S. would not 

come cheap. In fact, at over $50 million, the German 

Narrow tailoring is more than just a 

requirement for overall goal setting. The 

Civil Rights Practitioner must be vigilant 

of any process that sets contract goals 

without considering factors such as project 

size, time, location, type of work, relevant 

market, available DBEs, capacity of DBEs, 

etc. Be wary of tables that automatically set 

goals based on standalone criteria such as 

cost, type of work, or location. Other factors 

to consider when reviewing or helping to set 

a contract goal: 

d Creating opportunities for outreach and 

education to ensure inclusion 

of both professional service and 

construction DBEs. 

d Whether the project could benefit from 

separate, distinct contract goals for 

design and construction. 

d Whether all relevant parties have an 

opportunity to provide input into goal 

setting, particularly on high visibility or 

major projects. 

d	 Ensuring that there is documentation that 

reflects a sound goal setting process 

for the project. In other words, is the 

process demonstrable and defensible? 

5 See 49 CFR §26.51(e) 19 
PRE-AWARD / GOAL SETTING 

manufactured tunnel boring machine came with its own crew and, coupled with its 

operation costs, represented a significant portion of the $600 million construction price. 

Working with FHWA, the principals agreed upon a cost figure representing the materials 

and work for which there were available DBEs. 

To set appropriate goals, practitioners should consider the 

following examples: 

Whether the project can support separate goals for professional services 

(design), construction and beyond. 

Though not required, many practitioners agree that having separate, distinct goals for 

design and construction resulted in better identification and use of a wider variety of 

DBEs. This held true across the ACM projects, though it was perhaps more successful for 

some. For example, Nevada treated its CMAR project as two separate contracts for the 

purposes of goal setting: one goal for design and one goal for construction. While the State 

provided for outreach events for the early identification of DBEs, the goal on construction 

was not set until 80% of the design contract was complete. Because the designer had 

no way of knowing what the construction goal would be, it had greater incentive to locate 

and line up DBEs to secure its chances of winning the construction portion of the project. 

The design firm risked losing the construction contract if it could not effectively develop 

its DBE construction commitments in the short time between goal setting and letting. 

Nevada’s approach is consistent with the CM/GC final rule,

6 Since most of the design is 

completed prior to advertising the construction portion, bidders should be able to identify 

and commit to specific DBEs within a short time-frame, and certainly prior to contract 

award. In this way, the CM/GC method more closely resembles the D-B-B process rather 

than the D-B process. 

Other recipients simply recognized that availability of DBEs for professional services was 

different from that of construction, warranting separate DBE goals. In Missouri, the design 

aspects of the Boone and Manchester Bridge projects supported the State’s decision to 

separate construction and professional services goals. Both bridges had higher goals for 

professional services (20% and 18% respectively) than for construction (14% and 12%). 

Similarly, the Maryland DOT Intercounty Connector project set an overall goal of 15% that 

included a 20% sub-goal for professional services. 

6 23 CFR Parts 630 and 635. 20 
PRE-AWARD / GOAL SETTING 

The P3s that include not only design and build, but also the obligation to finance, operate, 

and maintain (DBFOM), may require recipients to identify additional opportunities for 

DBE participation. For example, while maintenance costs are traditionally ineligible 

for Federal-aid, Virginia anticipated a future need for preventative maintenance and/ 

or pavement preservation (eligible for Federal-funding) as part of the operation and 

maintenance (O&M) portion of its 70-year I-95 Express Lanes project and set goals 

accordingly. By thinking ahead, Virginia identified future DBE opportunities when setting 

its project goals. 

More commonly, the O&M portion of P3s do not include Federal-aid, as with Florida’s 

I-595 Project, a P3 with a fixed 35-year period of operation, or California’s Presidio 

Parkway, a P3 with 30 years of O&M in which the DBE participation goal was expressed as 

a percentage of the design and build portions of the contract. Nevertheless, as a matter 

of policy both States promoted the use of DBEs and other small, disadvantaged business 

in future O&M activities, even though they could not include race-conscious DBE goals 

on those aspects of the contracts. In other cases, such as the Goethals Bridge in New 

York, the sizing of the TIFIA loan covered design and construction, but did not include 

operations and maintenance. 

What contracts are subject to DBE program requirements? 

Congress first authorized the DBE Program in 1982. Since that time, the DBE Program 

has applied to contracts that include certain Federal-aid highway funds, as set forth in 

authorization statutes. Most recently, Congress directed that the DBE Program applies 

to Federal-aid highway funds authorized under Divisions A and B of MAP-21 and under 

titles I, II, III, and VI of the FAST Act and 23 U.S.C. 403. 

As discussed above, recipients are not required to set DBE contract goals on all Federalaid contracts. Rather, contract goals must be used to the extent that a recipient 

projects that it will be unable to meet its overall DBE goal through exclusively raceneutral methods. In the handful of states that operate race-neutral programs, contract 

goals are not used. The regulations in 49 CFR 26.51(f) provide that where recipients 

anticipate meeting their overall DBE goal through 100% race neutral means (i.e., 

without the use of contract goals), they may not implement the use of race-conscious 

means (i.e., contract goals). This can be worrisome for recipients on ACM projects, 

primarily because contract amounts are often high enough to impact the recipient’s 

7 ACM projects may have multiple sources of Federal-aid, some of which would require compliance with Titles 23 and 49 of the Code of Federal Regulations, 

even in operations and maintenance. TIFIA, however, is sized for design and build, with operations and maintenance specifically excluded. 

21 

7
 

 

 

PRE-AWARD / GOAL SETTING 

overall goal achievement. Florida, the largest State with a 100% race-neutral program, 

continues to rely heavily on outreach and education through supportive services, influence 

of the transportation engineering and construction industries, and design-builder and 

concessionaire contract obligations to meet the State’s overall aspirational goal—I-595 

and the Port of Miami Tunnel being notable examples. When New Hampshire and Maine 

collaborated on the Memorial Bridge P3—the largest in New Hampshire’s history—New 

Hampshire did not expect to achieve its annual DBE participation goal. While it was 

tempting for New Hampshire to set a higher goal on the project to ensure attainment of 

its annual goal, the States analyzed the particular circumstances of the project (e.g., type 

of work and availability of DBEs) and set and achieved a narrowly tailored 4% DBE goal. 

The Transportation Investment Generating Economic Recovery (TIGER) program also 

may preclude DBE goal setting. As an initial matter, TIGER funding has historically been 

provided through Congressional appropriations statutes, rather than through federal-aid 

authorization statutes that authorize the DBE program and identify federal-aid highway 

funds to which the program applies. 8 As a result, by statute, the DBE program does not 

apply to TIGER funding. The Department, however, as a matter of policy, applies the 

DBE program to TIGER grants awarded to State DOTs or their sub-recipients because 

State DOTs have established DBE programs as regular recipients of federal-aid highway 

funding, and, thus, they can readily integrate TIGER funded contracts into their DBE 

programs. Other TIGER grants, though, have been awarded directly to non-traditional 

FHWA recipients, such as universities, MPOs, and LPAs, that lack existing DBE programs 

and, thus, lack the necessary policies and capacity to implement the requirements of 49 

CFR Part 26. 

Such recipients, instead, are directed to follow general grant rules that require taking 

“all necessary affirmative steps to assure that minority businesses, women’s business 

enterprises, and labor surplus area firms are used when possible.” (2 CFR § 200.321.) 

While recipients are encouraged to actively promote the use of small, women-owned, 

and minority-owned businesses, and may contractually require design-builders to take 

steps to locate and use these businesses, they cannot set contract goals. 9

8 TIGER funding was first authorized in 2009 under the American Recovery and Reinvestment Act. Since then, Congress has renewed funding for the program each year through the 

appropriations process. See, e.g., the Consolidated Appropriations Act, 2016 (Pub. L. 114-113, December 18, 2015), appropriating $500 million for National Infrastructure Investments. 

9 The information provided here was verified by both FHWA’s Office of Chief Counsel and TIGER office. It was true and correct as of the date of Handbook publication. Practitioners 

should nevertheless contact HCR and HCC for assistance regarding the application of the DBE regulations at 49 CFR Part 26 to any discretionary grant program. 22 
 

 

PRE-AWARD / GOAL SETTING / FIGURE III 

d

A

d

In contrast, TIFIA-funded projects are subject to DBE Program requirements, regardless 

of the recipient because TIFIA funds, by statute, are included among the funds to which 

the DBE program applies. 

FIGURE III 

TIGER FUNDING DIRECTLY TO 49 CFR 26 

State DOT sub-recipient (funding through the State DOT) 

LPA, MPO, university, or any public entity 

State DOT 

What parties are important to setting an effective DBE participation goal? 

Of the projects surveyed, the recipients that included input from internal and external 

stakeholders reported a more efficient goal-setting process, including fewer good faith 

efforts submissions and more accurate and attainable goals. This is consistent with FHWA 

HCR’s view that the more a recipient’s contract goal setting process resembles the overall 

goal setting procedures in 49 CFR 26.45, the more narrowly tailored the goal will be and 

the less likelihood of DBE program legal challenges.10 One notable example is 

Maryland’s $2.5 Billion D-B construction of the Intercounty Connector–one of the 

nation’s largest projects. To set the DBE contract goal for the project, Maryland used 

its Procurement Review Group (PRG), consisting of the State DOT’s offices of 

construction, maintenance, civil rights, and procurement. However, Maryland also 

solicited input from, and included communication with, its industry and community 

groups such as residents, businesses, elected officials, communities, motorists, and 

environmental and other interest groups within the corridor. It was essential that the 

design-builder commit to a significant level of community participation and interaction 

during the development of the design, as well as throughout the construction of the 

structures and roadway. The input from stakeholders helped the PRG validate DBE 

availability, while the enhanced communication built an environment of trust and 

partnership around the project. 

10 49 CFR 26.51(a) requires that the maximum portion of the recipient overall goal be met through race neutral means. Section (d) provides that contract goals are only set to the extent that race neutral means are 

insufficient to meet the overall goal. Section (e) states that goals may only be set where there are subcontracting possibilities and after considering factors such as type of work, location, and DBE availability. 23 
PRE-AWARD / GOAL SETTING 

One recipient, an LPA, set a substantial goal on a CM/GC 

project without any forewarning to or discussion with the 

FHWA Division Office. The project was awarded to a contract 

manager followed by the letting of a series of construction 

contracts with varying DBE contract goals to meet the overall 

project goal. The State and Division recognized that higher 

contract goals were required to meet the overall project goal, 

and that the LPA was not considering project goal attainment 

when setting individual goals. The two agencies worked with 

the LPA to set higher goals on the remaining construction 

contracts and account for additional DBE participation 

obtained on contracts that were previously awarded. These 

measures reduced the need to place an inordinately high goal 

on the largest of the construction contracts that would have 

been necessary to meet the overall project goal. Because 

of the LPA’s rocky start that lacked integral partners, State 

approval of contract goals and good faith effort evaluation 

ensured successful execution of contract goal setting and 

awards. Additionally, the FHWA Division reviewed and 

concurred with the DBE goal–setting methodology on the 

largest construction contract. 

Regardless of how goals are set on ACM projects, the civil 

rights practitioner, or other professional trained in civil 

rights, should provide input and be involved as a reviewer, 

at a minimum. While it is the recipient’s responsibility to set 

contract goals on Federal-aid projects, the civil rights and/ 

or oversight practitioner oversees compliance and helps to 

ensure program success and integrity. 

The CM/GC project delivery 

method allows an owner to 

engage a construction manager 

during the design process to 

provide constructability input. 

The construction manager has 

the first opportunity to bid on 

the subsequent construction 

contracts. If an acceptable bid 

is submitted by the contract 

manager that meets the contract 

DBE goal or documents adequate 

good faith efforts to meet it, 

that construction contract is 

awarded to the contract manager. 

Otherwise, it is advertised like a 

normal design-bid-build contract. 

24 
Twin Tunnels Widening, FHWA 

Carlin Tunnels Widening, FHWA 

FIGURE IV
 PRE-AWARD / GOAL SETTING IN ACM / FIGURE IV 

GOAL SETTING IN ACM
 

Construction Manager / General Contractor 

Similar to D-B in that the designer collaborates with the contractor and, where the 

owner agrees to price and design, awards the contract to the same contractor. For 

DBE purposes, CM/GC is closer to traditional D-B-B in that the contractor must 

meet the DBE goal or demonstrate good faith efforts toward meeting the goal 

as a condition of award. 

CONSIDERATIONS 

• Can the design portion support its own separate • Is the goal based on a documented, sound 

DBE goal? understanding of the work, the market area, 

• Is the Division and/or Owner’s Civil Rights and the available pool of DBEs? 

staff able to review the goal before the RFP is 

issued? 

EXAMPLES 

Sixth Street Viaduct Project &

•

•

 High goal set by LPA with no initial 

FHWA review. 

FHWA and State had to subsequently 

assist LPA to ensure higher goal was met. Six Street Viaduct Project, City of Los Angeles 

CM/GC 

Twin Tunnels Widening &

• Set a 3% goal on ‘preconstruction’; 

included essential expert advice on likely 

DBE opportunities. 

Carlin Tunnel &

• Modest goal based on time, availability, 

and capacity. 

• Very little market interest in tunneling. 

• State was an early and regular participant 

in a carefully considered goal. 

25 
PRE-AWARD / GOAL SETTING IN ACM / FIGURE IV 

Design-Build 

The owner solicits project proposals for design and construction, and then awards 

based on best-value – not only price, but innovation, quality, past performance, D-B 

EXAMPLES 

I-6Tappan Zee, NYS Thruway Authority 

and other factors. 

CONSIDERATIONS 

•Professional Services DBE credit must be counted. 

•Do design and related professional services 


require DBE goal separate from construction?
 

•Is education and outreach sufficiently early and 

robust to ensure DBE participation in both design 

and construction? 

Tappan Zee Bridge &

•Included all agencies with project interest in 


collaborative goal setting effort.
 

•A separate goal in the design-build contract for 

design, or other professional services such as 

Construction Inspection, may have allowed for 

more appropriate and narrowly tailored goal in 

these areas and increased opportunities. 

•Documented process of goal setting. 

•Program support from leadership at the
 

highest levels.
 

Intercounty Connector (ICC) &

• Convened Procurement Review Group (PRG)


 look at location, scope, size etc.
 

•PRG included broad representation – construction, 

procurement, equal opportunity, maintenance. 

•Constant communication with industry groups 

to address interest in and expectations of the 

community. 

•Are goals based on documented, sound 

understanding of the work, the market area, and 

the available pool 

of DBEs? 

•Do goals take into account all reasonably 

foreseeable subcontracting opportunities? 

Intercounty Connector, FHWA 

26 
PRE-AWARD / GOAL SETTING IN ACM / FIGURE IV 

Public-Private Partnership 

Agreements that typically include private interests in the design, build, financing, 

operation, and/or maintenance of the facility, often for set periods of time. 

P3 

CONSIDERATIONS 

•Do operations/maintenance activities include •Is outreach and education sufficiently early, broad, 

federal funds, and if so can they support and robust to ensure involvement by not only 

DBE goals? DBEs, but also the business community impacted 

by the project? 

I-95 Express Lanes, FHWA 

EXAMPLES 

I-95 Hot Lanes Project &

•Projected DBE use on maintenance functions, to 

include multiple resurfacing projects over the 

70- year operations period. 

•State DOT posts its contract goal setting process 

on its public website. 

Goethals Bridge &

• Collaborative goal setting involving all partners 

and sponsors. 

•Used variance to allow DBEs from multiple States 

to participate in anticipation of shortage of ready, 

willing, and able DBEs. 

Goethals Bridge, FHWA 

27 
Twin Tunnels Widening. Source: FHWA Widening. Source: FHWA

PRE-AWARD / GOAL SETTING IN ACM / FIGURE IV 

Transportation Investment Generating Economic Recovery 

Often let as D-B, TIGER funding may go directly to State DOTs or may be funneled 

through the State DOT to sub-recipients. In other cases, it may go directly to an 

LPA, MPO, university, or other public entity. TIGER funding is awarded in ‘rounds’ for 

particular project proposals chosen by a panel of USDOT transportation specialists. 

TIGER 

CONSIDERATIONS 

•If a TIGER grant is awarded to a State DOT, it 	 •When required, are DBE goals reflective of the 

applies its own DBE program and goal. State DOT’s program and plan? 

•If a TIGER grant is awarded to a sub-recipient, with 	 •Are goals strictly DBE without separate or local 

funding passing through the State DOT, the State preference goals? 

DOT’s DBE program and goal apply. •Does the recipient understand the requirements, 

•If TIGER is awarded directly to a non-State DOT, LPA,	 and is it able to effect oversight and enforcement? 

MPO, or other public entity, the DBE program does 

not apply 

Twin Tunnels Widening. Source: FHWA Twin Tunnels Lee County Complete Streets, FHWA 

EXAMPLES 

Lee County Complete Streets &

•MPO direct recipient with no construction 

experience. 

•MPO required to provide a competent oversight 

firm with past experience on State DOT projects. 

•Race neutral contract following the State DOT’s 

program plan and oversight manual. 

28 
Transportation Infrastructure Finance and Innovation Act 

PRE-AWARD / GOAL SETTING IN ACM / FIGURE IV 

29 

Transportation Infrastructure Finance and Innovation Act 

Provides Federal credit assistance to eligible surface transportation 

projects, including highway, transit, intercity passenger rail, some types 

of freightrail, intermodal freight transfer facilities, and some modifications inside 

a port terminal. 

CONSIDERATIONS 

• TIFIA credit assistance is Federal assistance, thus all Federal requirements, including DBE, apply. 

EXAMPLES 

•DBE goals are set as per State’s DBE Program Plan 

on those portions of the project to which TIFIA was 

sized (such as design-build costs – most likely not 

sized to maintenance/operating costs, but good 

question to ask). 

• In Tappan Zee TIFIA federalized the project so 

goal setting methodology followed 49 CFR Part 26 

requirements. 

I-6Tappan Zee, NYS Thruway Authority 

TIFIA 

29

Provides Federal credit assistance to eligible surface transportation 

projects, including highway, transit, intercity passenger rail, some types

of freightrail, intermodal freight transfer facilities, and some modifications inside 

a port terminal.

CONSIDERATIONS

• TIFIA credit assistance is Federal assistance, thus all Federal requirements, including DBE, apply.

EXAMPLES

• DBE goals are set as per State’s DBE Program Plan 

on those portions of the project to which TIFIA was 

sized (such as design-build costs – most likely not 

sized to maintenance/operating costs, but good 

question to ask).

• In Tappan Zee TIFIA federalized the project so 

goal setting methodology followed 49 CFR Part 26 

requirements. 

TIFIA
IMPLEMENTA

 

IMPLEMENTATION PRE-AWARD / IMPLEMENTATION 

30

IMPLEMENTATION

During pre-award, the practitioner has the best opportunity to influence the future 

success of the project’s DBE program by conducting a thorough review of the documents 

that precede ACM delivery. The acronym table on page 2 of the Handbook provides 

definitions and links to additional information about each document, but the content and 

level of specificity for DBE project requirements differ among recipients and projects. 

Generally speaking, the Request for Qualifications (RFQ) is a notification to bidders to 

submit their professional qualifications. The RFQ may contain only a notification that 

the DBE specifications will apply or in some instances, the RFQ will alert proposers 

that they will be expected to include a DBE Performance Plan with their proposal that 

identifies specific DBEs and/or the types of work items it will solicit DBEs to perform. 

Recipients use RFQs to ‘short list’ proposals by evaluating factors such as innovation, 

previous work history, bonding capacity, and past DBE program compliance. DBE may 

be an evaluation factor, either through a de minimis point score or pass/fail rating. For 

example, Minnesota used a two-phase process for the I-35 MN Pass Project. The RFQ 

was the first phase in which the recipient included nondiscrimination and DBE legal 

requirements, but not a goal. Minnesota also provided a link to the DBE directory in the 

RFQ so that the proposal teams could begin outreach to, and the assembling of, DBEs. 

Similarly, for Virginia’s I-95 Express Lanes Project, the recipient also notified bidders via 

the RFQ that a goal would be set on the project, but it did not factor anticipated DBE use 

to shortlist responding firms. 

IMPLEMENTATION OF DBE PROGRAM 

IN PRE-AWARD DOCUMENTS: 

RFQ, RFP, PMP, ITP, DBEPP 

30 
PRE-AWARD / IMPLEMENTATION 

The Instructions to Proposers (ITP) and the Request for 

Proposals (RFP) are related documents that are not always 

distinguishable. The oversight practitioner can think of an ITP 

as a list of what proposers must submit for a responsive bid 

that will be considered by the recipient. Unlike the RFQ, the 

RFP will advise proposers in detail of the DBE requirements 

in the contract specifications. The RFP may also include the 

DBE goal and require proposers to include in their response or 

prior to contract award a list of DBEs it will subcontract with 

and/or the types of work items it will solicit DBEs to perform 

to achieve the goal or good faith efforts requirements. 

The regulations in 49 CFR § 26.53(b)(3)(ii), provide that, 

in a negotiated procurement, including a design-build 

procurement, the bidder/offeror may make a contractually 

binding commitment to meet the goal at the time of bid 

submission or the presentation of initial proposals but provide 

the information required by 49 CFR § 26.53(b)(2) before the 

final selection for the contract is made by the recipient. In 

some of the ACM models, including design-build on multiyear projects, because the design is typically only minimally 

complete, it is difficult to identify all of the subcontracting 

opportunities that may arise throughout the life of the 

contract. Generally, most of the RFPs for the projects 

surveyed for this Handbook required some commitment of 

specific DBEs upfront in order to be considered responsive; 

however, most recipients did not preclude a bidder/proposer 

from being awarded a contract if it committed to make 

additional and ongoing efforts to solicit DBEs to meet the goal. 

Thus, it is becoming more common in ACM for recipients to 

use the RFP to impose specific outreach responsibilities on the 

proposer, including the associated costs, and a commitment 

to continue to solicit and hire DBE subcontractors throughout 

the life of the contract. 

Of all documents in AC, the 

most important to DBE program 

success is the RFP. Practitioners 

should engage leadership and 

transportation engineers to 

ensure they are among the 

required reviewers of draft RFPs 

prior to Division approval. More 

than one Division admitted 

that most compliance issues 

encountered during project 

delivery might have been lessened 

or avoided had a civil rights 

technical expert reviewed the 

draft RFP. This is even more 

critical where the recipient is an 

LPA and unfamiliar with program 

requirements. 

31 
PRE-AWARD / IMPLEMENTATION 

Although the regulations in Section 26.53(b)(3)(ii) require DBE commitments prior to 

the recipient’s final selection, the USDOT has long recognized that design build contracts 

would require something different. The preamble to the 2014 regulatory revisions stated 

as follows: 

“It bears repeating what the Department said in 1999 on the subject, because it remains 

the case today. On design-build contracts, the normal process for setting contract goals 

does not fit the contract award process well. At the time of the award of the master 

contract, neither the recipient nor the master contractor knows in detail what the project 

will look like or exactly what contracting opportunities there will be, let alone the identity 

of DBEs who may subsequently be involved. In these situations, the recipient may alter 

the normal process, setting a project goal to which the master contractor commits. 

Later when the master contractor is letting subcontracts, it will set contract goals as 

appropriate, standing in the shoes of the recipient. The recipient will exercise oversight 

of this process.” 

Fed. Reg. Vol. 79/No. 191, p. 59585. Further, 49 CFR §26.53(e) arguably supports a more 

open-ended approach to identifying DBE participation. 

“In a “design-build” or “turnkey” contracting situation, in which the recipient lets a master 

contract to a contractor, who in turn, lets subsequent subcontracts for the work of the 

project, a recipient may establish a goal for the project. The master contractor then 

establishes contract goals, as appropriate, for the subcontracts it lets. Recipients must 

maintain oversight of the master contractor's activities to ensure that they are conducted 

consistent with the requirements of this part.” 

By allowing the “master contractor,” e.g., developer, design builder, etc., to meet the 

overall goal initially by agreeing to establish subcontract goals as appropriate, the 

regulations recognize the necessity of an open-ended commitment at the time of selection 

and award in certain methods of alternate contracting. Therefore, to require a developer 

to establish and submit a plan prior to contract award that commits to some DBEs and 

identifies how it intends to meet the DBE goal through its future subcontracts aligns 

with the regulatory intent pertaining to design build contracts. Further, the regulation 

supports the recipient’s responsibility to assess the developer’s ongoing efforts to meet 

the project goal as discussed in the Good Faith Efforts section in the Post-Award/During 

Construction Section. 

32 
PRE-AWARD / IMPLEMENTATION 

To illustrate the varied nature and use of the ITP/RFP in ACM, here is 

a list of some common requirements: 

Colorado 

The CDOT used the RFP to require the proposer to designate a DBE 

officer responsible for outreach efforts and to oversee DBE program 

compliance on the US 6/I-25. 

Minnesota 

The MNDOT treated the RFP as stage two of procurement for the I-35E 

MN Pass, requiring the short- listed teams to submit DBE commitments 

along with letters of intent for each DBE; signed agreements with each 

DBE; bidders lists for any DBE or non-DBE submitting a bid; certificates 

of good faith effort and goal certification; a description of what the 

DBEs were subcontracted to perform; and how the design-builder 

would monitor performance. If any of these documents was missing 

or incomplete, the proposer was deemed non-responsive and ineligible 

for award. 

Missouri 

The MoDOT used DBE commitments and Disadvantaged Workforce 

Utilization as an RFP factor worth a total of 5 points in determining the 

award of its Daniel Boone Bridge project. 

Georgia 

The GDOT clearly specified in the ITP that, as part of the P3 for 

I-285/SR 400, “[f]ailure to submit the DBE Performance Plan will be 

considered a breach of the requirements of the RFP. As a result, the 

Proposal Security provided by the Proposer will become property of 

GDOT and the Proposer will be precluded from participating in any 

re-procurement of the [Project].” 

33 
PRE-AWARD / IMPLEMENTATION 

California 

Caltrans’ Presidio Project, a TIFIA-funded P3, required proposers to 

sign a document either committing to the goal or making good faith 

efforts to do so. A DBE Plan was not required until after award, but 

before the TIFIA loan closed. This was unusual for California in that 

most of its D-B projects require proposers to submit the DBE plan in 

response to the RFP as a matter of responsiveness. During pre-award 

for another Caltrans D-B project, the State found a proposer nonresponsive when the proposer submitted a DBE Plan but failed to show 

that it planned to meet the DBE goal in its initial best-value proposal. 

Caltrans believed that a proposer that indicates up-front that it does 

not plan on meeting the goal does not, by definition, demonstrate 

that it took actions one would reasonably expect a proposer to take 

if the proposer were actively and aggressively trying to obtain DBE 

participation sufficient to meet the DBE contract goal.11

In ACM, the practitioner will often encounter DBE Performance Plans (DBEPP). The 

DBEPP is a document submitted either in response to an RFQ/RFP or sometimes after 

selection, but typically before contract execution. It serves as a contractual obligation 

as well as a detailed plan of the efforts the design-builder will use to achieve the DBE 

commitment. The DBE program requirements may be included either as a standalone 

section of the PMP (for major projects) or by reference to a separate DBE Plan. Unlike 

in D-B-B projects, recipients place more emphasis on these plans in ACM for several 

important reasons. First, they recognize that DBE use and availability could fluctuate as 

the project moves from design into construction and then, in some cases, to operation 

and maintenance. Commitment alone is not enough to anticipate these changes. Second, 

the Plans shift focus from what the design-builder must do to how they will do it. This 

provides the recipient with a measure for ongoing monitoring and for assessing good faith 

efforts.12 Third, Plans provide a contract remedy to the recipient in the event of breach. 

While the recipient’s responsibility is to USDOT, it must rely on its policies, specifications, 

and contract documents to hold design-builders accountable. 

11 Appendix A to 49 CFR 26 provides two means of establishing responsiveness where a DBE contract goal is set, “First, the bidder can meet the goal, documenting commitments 

for participation by DBE firms sufficient for this purpose. Second, even if it doesn't meet the goal, the bidder can document adequate good faith efforts. This means that the 

bidder must show that it took all necessary and reasonable steps to achieve a DBE goal or other requirement of this part which, by their scope, intensity, and appropriateness 

to the objective, could reasonably be expected to obtain sufficient DBE participation, even if they were not fully successful.” 

12 For a broader discussion of GFE, see the “Post-Award/During Construction” Section. 

34 
PRE-AWARD / IMPLEMENTATION 

PROJECTS WITH notable DBE Plans and PMPs:
 

Texas Horseshoe Project 

The DBE Performance Plan covers every aspect 

of the program, including: the designated 

representative responsible for DBE compliance; 

required marketing/outreach efforts; a list of line 

items for DBE subcontracting for both first and 

lower tiers; tracking and counting; and commitment 

schedules. Further, the document requires the 

design-builder to take part in education workshops, 

job training events, and student internships. 

California Presidio Parkway 

California did not require a DBE Performance Plan 

on this project until after the award of this P3. 

On subsequent D-B projects, however, California 

required a DBE Performance Plan in response to the 

RFP. Caltrans leaves no room for doubt as to what it 

expects from design-builders. It posts a sample on 

its website and refers all proposers to it as a matter 

of practice on D-B projects. 

New York Tappan Zee Bridge 

The Plan took 6 months to produce, but the 

result was a carefully drafted, detailed document 

specifying DBE program requirements from 

procurement through final acceptance. The Plan 

was so successful that it evolved into a method for 

tracking commitment and crosschecking actual 

attainment (i.e., running tally). 

Horseshoe Project, FHWA 

Presido Parkway, FHWA 

I-6 Tappan Zee, NYS Thruway Authority 

35 
PRE-AWARD / IMPLEMENTATION 

The PMP is a required document on Federally-aid highway projects over $500 million. It 

is written by the project sponsor or direct recipient of the Federal funds to effectively and 

efficiently deliver a quality project. The purpose of the PMP is to clearly define the roles 

and responsibilities of the agency leadership and management team and to document 

the procedures and processes that will be used to provide timely information to project 

decision-makers. The Project Oversight section of the document should include the 

oversight of the DBE program and describe the roles and responsibilities of both the 

project sponsor and FHWA to effectively manage the Federal requirements, including 

review and approval actions. 

Examples of PMP Documents: 

New York’s Tappan Zee PMP &

New York’s Tappan Zee PMP was written by the New York State Thruway Authority, a nontraditional sponsor of federally assisted projects. The PMP, approved by the New York Division 

Office, includes details of their processes to provide oversight of the DBE program. These 

procedures ensure that the Thruway is providing adequate oversight and monitoring. 

Maryland’s ICC PMP &

Maryland’s ICC PMP had unique language that called for conducting regular audits and reviews to 

ensure that DBE participation is monitored, goals are being met, and timely payments are made. 

In addition, monthly progress reports were required on "DBE Expenses to Date" to measure DBE 

goal achievement (running tally). 

Virginia’s I-95 HOT Lanes/Express Lanes PMP &

Virginia’s I-95 HOT Lanes/Express Lanes PMP provides details of how the concessionaire, 

the direct recipient of TIFIA, will manage goals, outreach, reporting, and sanctions. 

36 
Tappan Zee, NYS ThruwayAuthority 

FIGURE V
 DBE AND ACM DOCUMENTS AT A GLANCE 

PRE-AWARD / DBE AND ACM DOCUMENTS AT A GLANCE / FIGURE V
 

Request for Qualifications 

37 37

The RFQ is the first part of the D-B selection process whereby the owner lists 

proposer minimum qualifications. The RFQ also provides a description of the work 

and requirements, one element of which should be notification that the DBE program 

will apply to the project. 

AUTHORS AND REVIEWERS 

RFQs are authored by the project owner and should be reviewed by both State and FHWA Division civil 

rights staff, particularly in the case of nontraditional project owners. 

MINIMUM ELEMENTS 

• Nondiscrimination assurances 

• Notice that DBE compliance will be a factor of RFP 

evaluation 

• DBE goal (if available) 

• Notice of any other RFP requirements: 

• Utilization Plan 

• Record of Past Performance 

• Evidence of GFE 

• DBE Performance Plan 

EXAMPLES 

Tappan Zee Bridge &

• RFQ stated there would be a DBE goal. 

• Response to, and compliance with, DBE 

requirements would be factors of evaluation. 

• RFQ advised proposers of 49 CFR 26 compliance. 

• Technical evaluation included documentation of 

past performance. 

Tappan Zee, NYS Thruway Authority

RFQ 
PRE-AWARD / DBE AND ACM DOCUMENTS AT A GLANCE / FIGURE V 

Request for Proposals 

Generally, the RFP is the second part of the D-B selection process whereby the 

owner describes the project parameters and specifications in detail, as well as 

soliciting price and technical proposals. The RFP also includes the Instructions to 

Proposers (ITP) which are the directions on how the proposal must be submitted. 

RFP 

AUTHORS AND REVIEWERS 

RFPs are authored by the project owners; however, it is highly recommended that civil rights staff be 

involved in the review of DBE-related requirements prior to FHWA-approval, to ensure sufficient detail, 

as well as ensure the accuracy and adequacy of the goal and the consequences of noncompliance. 

MINIMUM ELEMENTS 

• Instructions to Proposers listing specific project 	 • DBE Performance Plan detailing how proposer will 

requirements for responsiveness. Specifies how achieve the goal and the firms it will use to do so or 

the proposer must submit information to be future work items it plans to use DBEs to perform. 

responsive to the RFP. • Record of past performance, including DBE 

• DBE goal for both professional services and 	 program compliance, goal achievement, etc.
 

construction, if applicable.
 

EXAMPLES 

I-64 Daniel Boone Bridge Manchester Bridge &

•DBE commitment is required for responsiveness. 

•Requires 100% commitments for professional 


services and 50% for construction.
 

•Requires draft DBE Performance Plan. 

I -285 & SR 400 &

• Encourages outreach events by shortlisted 


proposers.
 

•Requires proposers to specify DBE work types,
 

utilization plan, monitoring plan and the percentage
 

each DBE contributes to the project goal.
 

•Scoring weighted for use of a variety of DBEs 


throughout the entire project.
 

1-64 Daniel Boone Bridge, FHWA 

1-285 & SR 400 

38 
PRE-AWARD / DBE AND ACM DOCUMENTS AT A GLANCE / FIGURE V 

DBE Performance Plan 

The DBEPP is often required as part of the RFP (at least as a first draft), 

the details how the proposer will achieve the goal and meet other DBE 

program requirements. 

DBEPP 

AUTHORS AND REVIEWERS 

DBEPPs are authored by the proposer and should be scrutinized by the owner’s civil rights staff. 

While Division approval is not required, the practitioner may find compliance determinations much 

easier knowing the level of specificity and commitment to the program. 

MINIMUM ELEMENTS 

• DBEs to be used to achieve the goal and in 	 • Details on how the proposer will: 

what categories. • Achieve the goal 

• Ensure compliance 

• Conduct outreach 

• Report/track DBE participation 

EXAMPLES 

South Carolina DOT’s newly drafted DBE special provisions (Section 107) require a detailed 

DBEPP within 30 days of award. 

•Naming a DBE Liaison Officer.	 •Approval of the DBEPP is a requirement for 

progress payments, review of design submittals, •Listing all committed DBEs with signed contracts. 

and to avoid contract sanctions. • Submitting monthly performance reports. 

39 
PRE-AWARD / DBE AND ACM DOCUMENTS AT A GLANCE / FIGURE V 

40 

Project Management Plan 

A comprehensive oversight plan is required for FHWA-assisted projects that 

exceed $500M and describes the various roles and responsibilities for project 

delivery and oversight by the project sponsor. 

MINIMUM ELEMENTS 

• PMPs are more flexible than the RFP or 

specifications. 

• PMPs may be updated during the life of the project. 

• PMPs may not contradict or alter contract terms. 

EXAMPLES 

Horseshoe Project &

• PMP required a certification that proposer 

would meet the goal and, if selected, submit 

a DBEPP explaining how it would comply with 

the owner’s DBE specifications. 

• PMP stated that failure to submit the DBEPP 

would deem the company nonresponsive and 

result in forfeiture of the bid bond. 

PMP 

40

Project Management Plan

A comprehensive oversight plan is required for FHWA-assisted projects that 

exceed $500M and describes the various roles and responsibilities for project 

delivery and oversight by the project sponsor. 

AUTHORS AND REVIEWERS 

PMPs are developed by the owner and must be approved by FHWA. The PMP establishes the roles and 

responsibilities for project oversight on DBE and other Federal requirements to ensure compliance. 

MINIMUM ELEMENTS

• PMPs are more flexible than the RFP or 

specifications.

• PMPs may be updated during the life of the project.

• PMPs may not contradict or alter contract terms.

EXAMPLES

Horseshoe Project &

• PMP required a certification that proposer 

would meet the goal and, if selected, submit 

a DBEPP explaining how it would comply with 

the owner’s DBE specifications.

• PMP stated that failure to submit the DBEPP 

would deem the company nonresponsive and 

result in forfeiture of the bid bond.

PMP
 

Outreach
 PRE-AWARD / OUTREACH AND EDUCATION 

and Education
 OUTREACH AND 

EDUCATION 

Special outreach efforts played a part in all but a few of the 

surveyed projects. In some cases, as in New York’s Tappan 

Zee and Maryland’s Intercounty Connector projects, public 

interest and high visibility meant that project marketing was 

a constant and shared responsibility among the owner, the 

State DOT, and the developer. Project marketing started early; 

all parties sponsored networking events—beginning at the 

time the short-listed firms were announced and continuing 

well into construction. In Florida, the I-595 Express Project, a 

P3, included separate and specific outreach by the Developer 

in addition to the extensive services regularly in use by Florida 

DOT. The Developer participated in all matchmaking events, 

as well as volunteered at youth construction and engineering 

programs throughout south Florida. Florida DOT provides 

both FHWA and State-funded supportive services, including 

those specifically for large or innovative projects. See the 

resource section of this manual for more information on 

assistance available to both DBEs and design-builders. 

Outreach and education of DBEs 

and other small businesses as 

part of, or required by, ACM are 

excellent ideas for increasing 

the quantity and quality of DBEs 

on FHWA-aid projects. However, 

no outreach is effective unless it 

results in participation. Thus, the 

owner should set performance 

metrics to document and evaluate 

the value of the efforts. 

41 
PRE-AWARD / OUTREACH AND EDUCATION 

projects THAT used a more formal outreach structure: 

Maryland 

Maryland, as described in its PMP, opened a separate civil rights office 

that was dedicated specifically to its Intercounty Connector project. 

This office, staffed with an outreach coordinator and compliance 

specialists, was responsible for overseeing DBE and EEO requirements. 

This resulted in an estimated 40 DBE outreach events from project 

award through construction and the creation of a mailing list that 

included over 2000 companies. 

Georgia 

Though Georgia’s RFP for I-285/SR 400 had nonspecific language on 

DBE outreach, it nonetheless required that proposers specify how they 

would solicit DBE participation on the project, and included in its ITP 

a requirement for firms to cooperate with Georgia’s public outreach. 

Even though not officially required, all four short-listed firms held 

independent outreach events, in addition to participating with Georgia’s 

efforts. 

Virginia 

Another notable outreach approach occurred in Virginia as part of its 

I-95 Express Lanes project. Building off the lessons learned in an earlier 

P3 effort, Virginia DOT hired a firm to provide DBE supportive services 

tailored specifically for the project before the contract was executed. 

Virginia DOT then developed a plan and conducted DBE outreach, 

working with each of the short-listed firms. 

Regardless of how or when the surveyed projects undertook outreach and education, 

one thing remains clear: FHWA supportive services programs cannot alone support 

the growth and sustainability of DBEs and other small businesses. Recipients requiring 

design-builders to pursue outreach efforts has the potential of effectively leveraging 

recipient resources and encouraging program ownership by all parties: the industry, 

recipients, and FHWA. 

42 
BEST PRE-AWARD / BEST PRACTICES 

BEST PRACTICES TO ENCOURAGE / 

PRACTICES CONTRASTED WITH PITFALLS TO AVOID 

This Handbook would not be complete without listing some of the pitfalls associated with 

DBE program implementation on ACM projects, identified through hard-won experience. 

The details and identity of those who shared their troubles are not listed but each are 

commended for helping to share these important lessons learned. The chart below 

identifies best practices to be encouraged contrasted with pitfalls to be avoided: 

FIGURE VI 

d ENCOURAGE A AVOID 

Early involvement by practitioners 

DBE and other civil rights issues can be 

overlooked or marginalized when the civil 

rights practitioner is not involved from project 

inception. Reviewing RFP, PMP, DBE Plans, and 

contract language is an important first step in 

establishing compliance. 

Partnership 

Of the projects surveyed, those deemed 

most successful were the result of close 

communication between FHWA, the recipient 

and later, the design-builder. At a minimum, 

regular communication lowers the risk of 

misunderstandings and differences of opinion, 

both of which slow compliance oversight and 

drive up costs. 

Visible Leadership 

ACM/IPD projects benefit when they 

demonstrate visible recipient executive 

leadership support. At a minimum, leadership 

must emphasize a commitment to the DBE 

program and ongoing DBE opportunities. 

‘Business as usual’ approach 

ACM/IPD projects are high risk and have high 

visibility. Small issues can rapidly spiral into major 

problems that have the potential of exposing the 

State and entire DBE program to legal challenge. 

Fragmentation of civil rights and operations 

programs 

Division engineers and the civil rights / oversight 

practitioner must cooperate and communicate 

to provide effective stewardship and oversight as 

well as good customer service. The agency should 

consider establishing office procedures requiring 

interdisciplinary review and approval of ACM/IPD 

draft documents. 

Shortcuts and lack of transparency 

ACM projects are typically larger and more visible,
 

thus, more likely to be audited by external agencies
 

and law enforcement. Hitting only the ‘minimums’
 

in project procurement
 

and delivery impacts transparency
 

and increases associated risks.
 

43 
PRE-AWARD / BEST PRACTICES 

d ENCOURAGE A AVOID 

Considered and Documented Goal Setting 

Recipients that use transparent, interdisciplinary, 

and multi-factor processes for goal setting 

improve the accuracy and achievability of 

the goal—not to mention reduce the risk of 

stakeholder complaints or legal challenge. Simply 

stated, the closer the contract goal setting process 

mirrors the setting of the recipient’s overall goal, 

the more likely it is to be narrowly tailored and 

survive scrutiny. 

Standard goal tables or merely applying the 

State’s overall DBE goal 

Fixed contract goal matrices based upon size 

or other standalone factors are not considered 

a narrowly-tailored method of goal setting. The 

practitioner should work with recipients to ensure 

goals established on ACM/IPD are defensible and 

supported with documentation of the process— 

similar to overall goal setting. 

Promoting Local Business Opportunity 

Early, continued, aggressive, and targeted 

promotion of ACM projects by recipients 

increases the likelihood that local businesses will 

participate and benefit from the project. 

Local Preference Clauses 

Including local participation through local preference 

clauses or separate local-use goals is problematic 

and could violate procurement rules unless part of a 

FHWA-approved pilot program. 

Meaningful outreach to and education of 

DBEs 

Outreach and education of DBEs and other small 

businesses as part ACM are excellent ways to 

increase the quantity and quality of DBEs on 

FHWA-aid projects. The more these efforts are 

documented and evaluated, the better owners can 

tailor future activities in support of the program. 

Window-Dressing Outreach as Evidence of GFE 

Engaging in voluntary or contract required outreach 

solely as a method establishing or documenting good 

faith is considered “pro-forma”, and should not be 

tolerated by the owner or FHWA. Communicate to the 

design-builder that neither the owner nor FHWA will 

support pro-forma outreach efforts that rarely result 

in subcontract awards. 

Enthusiastic use of approved DBE 

Program Plans & Goals 

Recipients with approved DBE Programs and goals 

must implement them on ACM/IPD projects, as with 

any other FHWA-aid project. With minor exceptions, 

sub-recipients must use the recipients’ FHWAapproved DBE Program Plan. 

Operating under Unapproved DBE Programs 

and the Inclusion of State and Local Minority 

and Women Enterprise (MBE/WBE) goals 

FHWA requires sub-recipients to use the State DOT’s 

approved DBE program plan and not operate under 

a separate plan when using FHWA dollars.13 USDOT 

does not permit including State MBE/WBE goals on 

federally-funded projects as doing so defeats the 

narrow-tailoring requirement of the DBE program. 

State and local affirmative action goals may only be 

included on 100% State-funded contracts. 

13Under the revised 49 CFR 26.21, FHWA’s primary recipients are required to have an approved DBE program plan. As explained in the preamble to the most recent revision of 

these regulations: “For FHWA, the proposed modification makes clear that under FHWA’s financial assistance program, its direct, primary recipients must have an approved DBE 

program plan, and sub-recipients are expected to operate under the primary recipient’s FHWA-approved DBE program plans . . . Where more than one operating administration 

is providing funding for a project or a contract, recipients should consult the [Operating Administration (OA)] providing the most funding for the project or contract and the OA, 

in turn, will coordinate with the DOT agencies involved to determine how to proceed.” Fed. Reg. Vol. 91/No. 191, p. 59580. 

44 
I-595 Express, FHWA 

PRE-AWARD / BEST PRACTICES 

d ENCOURAGE A AVOID 

Leveraging Available Resources 

Contract requirements for outreach and 

education may assist recipients with stretching 

limited supportive services dollars. They also 

help share program ownership and provide 

an opportunity to assess the design-builder’s 

commitment to program compliance. 

Viewing Goal Attainment versus Submission 

of GFE Documentation as a choice 

Practitioners and recipients should be mindful that 

GFE and goal attainment cannot be separated. 

Contractors must use those efforts one could 

reasonably expect a bidder or contractor to take if 

they were actively and aggressively trying to meet 

the DBE goal. GFE documentation is considered if 

the goal is not met, or in the case of a DBE Plan, if the 

contractor is not on-track with its committed schedule 

to meet the goal. It is never appropriate for a prime to 

begin the project with the notion that it will meet its 

contract obligation through documented GFE only, 

rather than through actively trying to meet the DBE 

goal. 

45 

I-595 Express, FHWA
POSTAWARD

POST-AWARD /
 

DURING CONSTRUCTION
 

46 
POST-AWARD /
 

DURING
 

CONSTRUCTION
 

It should be no surprise to the practitioner that DBE 

program risks on all highway projects increase during the 

construction phase of the project. This is equally true in ACM 

projects: greater visibility, higher dollar amounts, increased 

complexity, and/or nontraditional partners associated 

with these projects all raise the likelihood of exposure and 

resulting impacts. By its very nature, ACM is under scrutiny 

by layers of compliance/enforcement authorities and by the 

general public. This section will provide key considerations 

and helpful tips in delivering successful, compliant, and 

opportunity-rich ACM projects. 

Port of Miami Tunnel, FHWA 

47 
Monitoring or POST-AWARD / MONITORING OR OVERSIGHT PLANS 

oversight 


plans

A notable aspect of preparing this Handbook was the 

unanimous agreement that DBE project oversight 

should not begin post-award. It bears repeating 

that the more developers, design builders, and 

owners understand the DBE program, the regulatory 

requirements, and the expectations of the owner and 

FHWA upfront, the more effective and efficient the 

oversight. Among those interviewed whose projects 

did not address DBE expectations pre-award, all 

concluded that use of monitoring or oversight plans 

would have carried compliance expectations through 

to construction, reducing developer resistance, and 

forging a sense of shared responsibility for the program. 

While there is no fixed definition for a DBE monitoring 

and oversight plan, it is any document, series of 

documents, resources, or tools used to describe, 

document, track, and report DBE program compliance 

during project delivery. Regardless of whether the 

plan is a single overarching document or is comprised 

of a number of individual components, to be effective, 

monitoring plans must be specific to the project and 

go beyond just restating the regulations or the owner’s 

DBE program plan. It may cover all aspects of civil 

rights compliance and contract administration, or be 

limited to the DBE program. 

MONITORING OR 

OVERSIGHT PLANS 

49 CFR 26.37 &

In ACM, Federal-aid might not 

be used until later in the project 

or, in some cases, not at all. 

Practitioners should remember 

that just the possibility of 

Federal funds requires 49 CFR 

26 compliance. Please note, 

including DBE participation on 

semi-annual Uniform DBE reports 

is only required when Federal 

funding kicks in. 

48 
POST-AWARD / MONITORING OR OVERSIGHT PLANS 

Similarly, it can be included as part of the contract documents, the PMP, or as a separate 

manual. A DBE monitoring and oversight plan should be shared with and discussed by 

all project partners – from owner to contractor. Though not necessarily subject to the 

agreement of all parties, effective plans are developed collaboratively and describe the 

roles each partner will perform in ensuring and documenting oversight. However, the 

practitioner should emphasize that it is ultimately the owner’s responsibility to ensure 

that effective monitoring takes place as well as to provide “[w]ritten certification that 

you have reviewed contracting records and monitored work sites in your state for this 

purpose.” 49 CFR 26.37(b). 

Consider these examples when developing or reviewing monitoring plans: 

Does the plan provide sufficient detail in describing expectations? 

In addition to requiring both cooperation with and adherence to the owner’s policies, 

the Comprehensive Agreement (Agreement) for the Virginia I-95 Express Lanes project 

specified developer outreach efforts, regular performance reporting, and contractor 

disqualification (for a minimum of 90 days) from any State contracting in the event 

of noncompliance. The Agreement also obligated the State to collaborate with the 

developer on outreach activities; identify those DBEs eligible to bid on specific work 

items; and provide access to state technical and managerial assistance programs for 

DBE subcontractors on the project. In addition to the Agreement, however, Virginia also 

developed a Civil Rights Team document that listed a "game plan” for the ACM Project. 

This document included oversight objectives, an outreach plan, a schedule for updates/ 

reports, and the key DBE program contacts. The document is now standard practice for 

all major projects in Virginia and is regularly updated to account for lessons learned from 

each successive project 

The New York Thruway Authority used very specific DBE oversight instructions as part 

of the RFP on the Tappan Zee Bridge project. The section is written in plain language and 

describes compliance activities as well as their specific purpose and use. For example, 

the owner acknowledges state M/WBEs and small businesses and encourages their use, 

but very clearly and repeatedly advises that “[t]his is a Federal-Aid contract with a single 

DBE goal and only DBE attainment will be counted towards meeting that goal.” The plan 

also requires the use of New York State DOT’s web-based data collection system for 

reporting and demonstrating compliance. 

49 
POST-AWARD / MONITORING OR OVERSIGHT PLANS 

Maryland’s Intercounty Connector project used an extensive oversight plan to ensure 

compliance. In addition to staffing a separate project-specific civil rights office, the State’s 

plan called for periodic compliance reviews, including tracking DBE commitments each 

month and reviewing all subcontract agreements. The plan also included mediation and 

complaint investigation procedures. 

As with other States, Georgia takes a layered approach to monitoring and oversight. It 

hires consultant engineering oversight firms to oversee the design-builder’s compliance 

with State and FHWA specifications. The State then conducts quality assurance 

reviews of the oversight firm, while the Division regularly visits the project to verify the 

effectiveness of Georgia’s oversight and compliance. 

Does the plan describe methods that will be used to monitor compliance? 

Maryland’s Intercounty Connector project included an extensive civil rights oversight 

and audit section. Most notably, it defined an independent audit oversight process which 

included regular audits to monitor DBE participation and attainment towards the goals, 

and independent audits by the consultant and the Maryland State Highway Administration 

(SHA) staff. The project assigned the consultant and SHA staff to work on the project 

full time to develop a comprehensive audit program that addressed monitoring DBE 

participation. It also required the owner to staff a separate civil rights office specifically 

for the ACM project that consisted of a compliance manager, DBE outreach coordinator, 

technical specialists, compliance staff, and administrative support. The office developed 

the ICC Compliance Guide to provide ongoing technical assistance to the builder and 

contractors, and a responsibility matrix that established the various types of compliance 

activities, the parties responsible for them, and the time period for conducting them. 

On Caltrans’ Presidio Parkway project, the State specified as part of its monitoring 

approach, the quarterly review of DBE reports and further detailed what constituted 

adequate reporting, GFE, site visits, and other activities. In addition, Caltrans provided 

sample site visit reports and other templates to assist compliance staff with oversight 

and to establish a clear set of expectations of design-builder, DBE, inspection, and 

compliance staff. 

50 
POST-AWARD / MONITORING OR OVERSIGHT PLANS 

Given the size of the Goethals Bridge and Tappan Zee Bridge projects in New York, the 

FHWA Division assigned a full time civil rights program manager to the projects who was 

responsible for coordinating the civil rights responsibilities. The manager convened and 

attended regular meetings with the project owners; scheduled in-depth reviews; and 

provided oversight, training, and technical assistance. To document oversight activities 

using the Division’s Risk Based Stewardship and Oversight model, a project tracker 

was created to capture all oversight, including pending issues or questions, goals, and 

accomplishments. There is a similar tracker for Tappan Zee and for the other New York 

major projects. 

Does the plan clearly define the consequences of noncompliance? 

Florida had a longstanding, successful Contractor Compliance Workbook that described 

in detail how the DBE program is monitored on projects, the forms/documents used, and 

the consequences of noncompliance. Nevertheless, it found modifications necessary 

on the I-595 Express project because no Federal-aid funds were scheduled for release 

until after construction when the project was in the operations phase. Without the ability 

to withhold progress payments for noncompliance, it established a point system, each 

point equivalent to a dollar amount to be deducted from future payments. Compliance 

points were assessed against the contracted amount, permanently reducing it unless the 

issue was remediated during a defined cure period. Though not specific to DBE, the point 

system proved an effective means of not only addressing issues but promoting universal 

commitment to compliance. 

California includes a contract provision in its D-B contracts that imposes liquidated 

damages defined as the difference between the DBE goal and actual DBE participation 

if adequate GFE are not demonstrated. This contrasts with the bidder being deemed 

nonresponsive if its DBE commitment fails to meet the goal or if it fails to demonstrate 

adequate GFE for traditional D-B-B contracts. This approach requires at least quarterly 

documentation of the execution of the DBE plan, questioning the need for revising the 

original plan if the contractor is behind schedule on its efforts to meet the DBE goal as 

one of many means of demonstrating adequate GFE, and ensuring that the contractor’s 

51 
Memorial Bridge, FHWA 

POST-AWARD / MONITORING OR OVERSIGHT PLANS 

For the Sixth Street Viaduct, the City of Los Angeles set DBE goals subject to Caltrans 

52 

approval and provided a summary roadmap of past goals/commitments and future goals. 

This approach served to demonstrate to the design-builder not only that the goal was 

achievable but examples of how it could be achieved. The project included some unusual 

terms for sanctions, in that both Caltrans and the Division had to review the City’s decisions 

on GFE. 

Colorado DOT clearly advises design-builders of what constitutes default, notably if “[t] 

he Contractor breaches any other agreement, representation or warranty contained in 

the Contract Documents, or the Contractor fails to perform any other obligation under 

the Contract Documents, including EEO and DBE requirements.” The State provides 15 

days from notice of breach as a “cure” period, after which it declares an Event of Breach. 

52

approval and provided a summary roadmap of past goals/commitments and future goals. 

This approach served to demonstrate to the design-builder not only that the goal was 

achievable but examples of how it could be achieved. The project included some unusual 

terms for sanctions, in that both Caltrans and the Division had to review the City’s decisions 

on GFE. 

Colorado DOT clearly advises design-builders of what constitutes default, notably if “[t]

he Contractor breaches any other agreement, representation or warranty contained in 

the Contract Documents, or the Contractor fails to perform any other obligation under 

the Contract Documents, including EEO and DBE requirements.” The State provides 15 

days from notice of breach as a “cure” period, after which it declares an Event of Breach.

Memorial Bridge, FHWA
 

CUF and POST-AWARD / CUF AND COUNTING 

Counting CUF AND COUNTING 

49 CFR 26.55 &

Project owners must have a process for conducting and documenting CUF reviews as part 

of their monitoring and oversight plans in order to document DBE compliance pursuant 

to 49 CFR 26.37(b). The CUF determination indicates that the DBE is performing with its 

own forces the work that it is certified and was contracted to perform. This also includes, 

depending upon the function the DBE provides, requirements such as negotiating price 

and purchasing its own supplies, obtaining and operating its own equipment, and directing 

its workforce. The CUF determinations have several purposes. First, they support the 

owner’s oversight of the DBE program on the project. Second, as discussed above, they 

serve as a means of documenting DBE compliance, required by 49 CFR 26.37. Third, 

they can be indicators of noncompliance or fraud. Fourth, they verify the appropriate 

crediting of DBE performance toward contract goals. Lastly, CUF is a necessary means 

of protecting program integrity – it benefits both the DBE and the design-builder by 

establishing evidence of program propriety when responding to the inevitable third-party 

complaints. 

In ACM, the definition of CUF does not change. However, ACM presents challenges to 

conducting and documenting CUF. Depending on size, these projects may have numerous 

tiers of subcontracting, numerous and overlapping construction schedules, and multiple 

years of work—complicating already resource-intensive compliance activities. Further, 

because 49 CFR 26.55(a)(1) and (2) tie counting and DBE credit to both professional 

services and construction contracts, owners must be able to document compliance with both. 

Establishing CUF and counting of DBE services toward goal credit has other challenges 

beyond project size and logistics. One is for the recipient to verify and accurately count 

credit for DBE trucking services so that the use of DBE and non-DBE trucks or the use of a 

DBE for brokering services does not lead to over-counting.14 On large projects, 

contractors are often disinclined to sign a vast number of subcontracts with DBE 

trucking owner/operators, preferring the more convenient option of hiring one or a 

few DBE firms to provide trucking services with their own employees and 

equipment and brokering supplemental trucking services. This means that the designbuilder should have a means of separating and reporting accurate DBE credit, and the 

owner should have a system to verify it; this is no small task when the projects call for 

hundreds of trucks. 

53 14 49 CFR 26.55(d) provides the requirements for counting DBE trucking credit.
POST-AWARD / CUF AND COUNTING 

Another example is the use of DBEs to provide 

materials, and in particular, bulk items, such as steel 

and petroleum. It is often difficult to determine 

whether a DBE supplier of such bulk items performs 

as a “regular dealer”15 and is entitled to count 60% 

of the cost of the items supplied, or whether the 

DBE is facilitating a transaction for the purchase of 

supplies between a prime and a manufacturer, 

and is thus entitled to count only the fees or 

commissions paid by the prime to provide this 

service. Obviously, it is in the prime’s best interest to 

consider a material supplier of bulk items as a 

regular dealer so that it can count 60% of the cost 

of such supplies as petroleum and steel toward the 

contract goal. In response to this, in 2014, USDOT 

revised 49 CFR 26.55(e)(4), which now requires 

recipients to determine whether a DBE supplier is 

performing a CUF on a contract-by-contract basis.16

Although CUF and counting requirements on ACM 

projects must be robust, they cannot be so rigid that 

they become a barrier to opportunity or create a chilling 

atmosphere between the primes and DBEs in the field. 

Fortunately, the regulations provide flexibility in how 

CUF is determined and documented, and collaborative 

decision-making post-award can anticipate high-risk 

participation like those examples above. Note that the 

regulations require that recipients count all eligible 

DBE participation in which the DBE provides a CUF. 

Regulations do not permit recipients to forbid certain 

types of legitimate DBE services or to forego tracking 

because the activity is nontraditional or inconvenient 

to monitor. 

Tech tools can simplify or 

streamline CUF reviews. For 

example, Tappan Zee uses Skype 

to conduct CUF interviews for 

offsite firms more than 100 miles 

from the project. In addition, the 

growing use of electronic payrolls 

and other e-paper can help reduce 

CUF from a matter of days to just 

hours. Note that time or labor 

saving CUF processes should 

not preclude careful review and 

approval of the CUF by both 

project management and civil 

rights/oversight staff. 

15 49 CFR 26.55 (e)(2)(ii)(B) provides: “A person may be a regular dealer in such bulk items as petroleum products, steel, cement, gravel, stone, or asphalt without owning,

operating, or maintaining a place of business as provided in this paragraph (e)(2)(ii) if the person both owns and operates distribution equipment for the products. Any 

supplementing of regular dealers' own distribution equipment shall be by a long-term lease agreement and not on an ad hoc or contract-by-contract basis.”

16 49 CFR 26.55(e)(4) states that “[y]ou must determine the amount of credit awarded as a regular dealer or a transaction expediter) on a contract-by-contract basis.”

54 
 

POST-AWARD / CUF AND COUNTING 

There are many excellent examples of CUF and counting nationwide, 

some practicable for ACM projects. The practitioner might consider 

the following: 

Is the CUF inspection process sufficiently comprehensive, extensive, and 

documented to support written certification of compliance as required 

by 49 CFR 26.37(b)? 

Virginia used a multi-tiered review to both establish CUF and to verify DBE program 

compliance on its I-495 and I-95 Express Lanes projects. The Virginia DOT DBE Compliance 

Review form was completed by the State’s District Civil Rights Office in cooperation with 

project inspectors. It required regular site visits, interviews with project staff (including 

the Prime and DBEs), document inspection, and collection of relevant evidence supporting 

CUF. The form was then reviewed and signed by both the District and Division Civil Rights 

managers. Virginia DOT’s form provided separate sections for DBE supply and hauling. 

Florida lacked a process for reviewing professional services firms on both its I-595 and 

Port of Miami Tunnel projects. However, those DBEs performing construction and related 

activities were reviewed multiple times during the life of the project—no fewer than three 

times within the first 90 days of activity and then randomly thereafter. 

Like Virginia, Florida DOT completed the CUF documents onsite and reviewed/collected 

supporting information such as daily work reports, certified payrolls, supply invoices, 

equipment leases or deeds, and other similar information. Also like Virginia, the CUF 

document required multiple levels of review and approval, beginning with the inspector, 

and then going in turn through the compliance specialist, compliance manager, and 

finally the project manager. 

New York’s Tappan Zee project has used DBEs well outside the New York area, especially 

suppliers. To perform CUF reviews on a DBE located further than 100 miles from the project, 

the Thruway Authority researched the company’s website, set up a phone interview with 

the DBE owner, and then scheduled a Skype call to get a “tour” of their facility. 

55 
 

 

 

 

 

 

 

 

 

 

 

POST-AWARD / CUF AND COUNTING 

Texas DOT developed a process for documenting DBE compliance on its Horseshoe 

Project and other design-build contracts. It drafted a mandatory monthly agenda for 

DBE Plan meetings to be attended by the developer, the design-builder, and compliance 

staff. At the first meeting, the partners discussed roles and responsibilities; the forms to 

be used for documentation; the process for tracking commitments and attainment; the 

subcontract and other documents to be reviewed; CUF procedures, including under what 

circumstances credit might be denied; joint check approval procedures; outreach efforts; 

and auditing. Each month thereafter, Texas DOT collected minutes showing the results 

of each meeting topic: 

d Commitments to goal attainment d Trucking credit worksheets 

d Monthly reporting d Status of audits 

d CUF reports and progress d Results of outreach events 

d Subcontracts collected/requested d Upcoming outreach events 

d Joint check issues 

Whether compliance is a shared responsibility, transparent to 

stakeholders 

When the FHWA California Division Office realized that Caltrans’s Presidio Parkway project 

initially anticipated $6M of trucking, it voiced concerns about the capacity of DBE haulers 

to support such a substantial commitment and how compliance could be monitored. A 

subsequent lower figure was established and, with Division encouragement, the project 

owner (LPA) hired a firm to identify DBE trucks and to develop a process for monitoring 

trucking CUF compliance. The consultant photographed license plates and recorded DOT 

numbers of every truck and documented ownership, load, departure point, destination, 

and a variety of other information. This information was used to counter multiple developer 

claims of DBE participation for non-DBE owner and operated trucks. 

Florida took an unprecedented approach to transparency on I-595 Express, inviting the 

USDOT Office of Inspector General (OIG) to visit the project, attend a progress meeting, 

and shadow the compliance process. Including OIG as a partner in project delivery allowed 

Florida DOT to explain its oversight processes, avoid unnecessary investigations, and gain 

the valued perspective of OIG on areas of compliance risk that the Division Office, Florida 

DOT, or the developer may have overlooked. 

56 
PROMPT 
 POST-AWARD / PROMPT PAYMENT AND RETAINAGE RETURN 

PAYMENT PROMPT PAYMENT AND 

RETAINAGE RETURN 

49 CFR 26.29 &

The opportunity for small and disadvantaged businesses to 

both sustain and grow does not end with securing work on 

ACM projects. Rather, the ladder of opportunity has multiple 

rungs, one of the most important of which is adequate 

operating capital. By definition, all DBEs and many other 

subcontractors are small businesses that depend on timely, 

accurate payments in order to continue providing services, 

pay suppliers, and meet payroll. All owners must include 

prompt payment and retainage return requirements in their 

special provisions and have a mechanism to monitor and 

track compliance. Many State DOTs further narrow the 30­

day minimum payment window through State statute, local 

ordinance, or contract specifications. However, until recently, 

many recipients believed that having adequate contract 

provisions met regulatory requirements. In March 2016, 

USDOT released guidance in the form of Q&A’s about prompt 

payment and retainage return. In addition to discussing the 

need for contract requirements and complaint procedures, 

the document recognizes that subcontractors might not 

complain due to fear of reprisal. As such, it emphasizes 

that “recipients are expected to take affirmative steps to 

monitor and enforce prompt payment and retainage return 

requirements.” 

Prompt payment is among the 

most serious issues facing the 

DBE program and industry in 

ACM. Lack of timely payments 

injures the growth and capacity 

of small and disadvantaged 

business and threatens the future 

health of the industry. Owners 

are increasingly taking a hard 

line on violators. For instance, in 

November 2016, New Mexico DOT 

suspended one prime contractor, 

“based on evidence of repeated 

violations of prompt payment 

requirements in contracts.” Some 

owners, like those in New York, 

find electronic systems helpful in 

verifying subcontractor payment. 

One caveat in selecting systems, 

however, is that they must be 

capable of tracking multiple tiers 

of subcontracting. 

57 
POST-AWARD / PROMPT PAYMENT AND RETAINAGE RETURN 

As with other aspects of ACM projects, prompt payment oversight can be more difficult 

for all parties— simply due to size, scope, and multiple tiering of subcontractors. Further, 

although prompt payment and return of retainage requirements pertain to subcontractors 

at all tiers, those at the end of the food chain must wait a very long time for payment, 

especially if the State uses the Federal 30-day pay window. 

noteworthy examples of prompt payment monitoring: 

New York 

For the Tappan Zee bridge project, the New York Thruway Authority used a 

comprehensive DBE electronic tracking system provided by New York State 

DOT. The system assists with setting agency and contract goals, monitoring 

procurement and award, and running statistical reports. However, it also 

has the added feature of monitoring prompt payment by requiring prime 

contractors to enter payment dates electronically into the system and requiring 

the subcontractors to verify receipt—also electronically. State law requires 

prime contractors to pay their subs within 7 days of payment by the owner. If 

payments are late, the system notifies the oversight agency. Unfortunately, the 

system could only monitor the first tier of subcontractors. To oversee payment 

at all tiers, the Thruway monitors lower tiers manually through spreadsheets 

and outreach to the subcontractors to ensure they are receiving payments on 

time. Since the award of this project, New York State DOT has updated their 

electronic data collection system to monitor prompt payment for all tiers of 

subcontractors. 

Colorado 

One common problem with prompt payment occurs when, by either contract 

structure or design-builder choice, Federal-aid funding is scheduled for later in 

the life of the project or, in rare cases, not at all. In Colorado, the prime agreed 

not to invoice or receive compensation from the State until after 6 months of 

project performance, even though subcontractors and DBEs were active. FHWA 

and the Owner insisted that the contractor adhere to prompt payment and 

retainage return requirements based upon satisfactory completion of work by 

the subcontracts. The contractual time lag of contractor invoicing and owner 

payment to the prime did not preclude the contractor’s obligation to pay its 

subcontractors promptly on this Federal-aid project. 

58 
 

GOOD FAITH
 POST-AWARD / GOOD FAITH EFFORTS 

EFFORTSGFE 

59

One of the challenges of administering DBE requirements in project delivery that deviates 

from D-B-B is the GFE requirement. In D-B-B, in response to a letting with a DBE contract 

goal, the bidder must submit with its bid, or within 5 days thereafter, a list of DBEs 

committed toward goal achievement, and the type and dollar amount of the work they are 

committed to perform. A bidder that falls short of the goal must submit documentation of 

the steps it took to solicit DBEs to achieve the goal (i.e., GFE). The recipient is responsible 

for evaluating holistically the quantity, quality, and intensity of the efforts described in the 

documentation to determine whether, despite falling short of the goal, the bidder made 

sufficient GFE to meet it and is eligible for contract award. Many recipients, however, 

found it difficult to evaluate the adequacy of GFE where proposers failed to identify 

sufficient DBEs at the time of the proposal. 

Through the review and analysis of the projects identified in this Handbook, FHWA has 

determined that the most logical and efficient means of evaluating GFE in an ACM project, 

other than GM/GC, is for the recipient to use the DBEPP as a roadmap to evaluate the 

design-builder’s ongoing GFE to achieve the goal. As discussed in the Pre-Award section 

above, 49 CFR 26.53(e) supports a more open-ended approach to DBE participation and 

the evaluation of GFE. This section allows the “master contractor” (e.g., developer, design 

builder, etc.) flexibility to use GFE to meet the goal throughout the life of the contract. This 

section also requires the recipient to maintain oversight of the contractor’s activities to 

ensure that they are conducted in a manner consistent with the requirements of this part 

49 CFR 26.53 &

59 
 

POST-AWARD / GOOD FAITH EFFORTS 

(e.g., evaluating GFE on an ongoing basis), as DBEs are solicited and hired. Evaluating 

compliance with the DBE plan best provides ongoing DBE opportunities and ensures 

adequate and timely reporting. The Owner’s oversight requirements cannot be limited to 

a document review, however. It must ensure that it makes accurate CUF determinations 

and holds the prime accountable for pro forma efforts that may not be intended to 

result in actual DBE participation. The owner is responsible for thoroughly examining 

all documentation provided by a prime who deviates from the schedule included in the 

DBE Performance Plan. For example, the owner must keep in mind basic GFE principles 

included in Appendix A to 49 CFR Part 26, such as rejecting a design-builder’s desire to 

self-perform work to which to it committed to soliciting DBE participation. 

This Handbook strongly advocates early communication among all parties. This applies to 

GFE as well. To implement GFE requirements, the oversight practitioner should consider: 

d Sharing expectations about basic principles of GFE 

d Providing design-builders and developers with examples of what is, and what is 

not, considered a GFE 

d Providing early and continuous emphasis that GFE is an ongoing effort to achieve 

a contract goal and not a choice between hiring DBEs and submitting paperwork 

d Describing how and when GFE will be evaluated 

d Emphasizing early and continuous evaluation of GFE to ensuresufficient time to 

correct any deficits in DBE participation that may arise. 

Examples OF GFE from the surveyed projects include: 

I-70 Manchester Bridge 

Missouri’s I-70 Manchester Bridge was a D-B project with 

an 18% goal for design and a 12% goal for construction. 

The RFP required the proposers to respond with a 

“minimum of 100% Design Services Goal and 50% 

Construction Goal”. This meant that the RFP required 

the proposer to respond with evidence that they had 

contracts with DBEs for 100% of the 18% design goal 

and a minimum of 50% of the 12% construction goal or 

provide evidence of GFE to meet those targets. Because I-70 Manchester Bridge, FHWA 

the contract required DBEs for the design work at the 

time of proposal, the proposer made a plan to meet the 

goal, which was initiated at award; thus, oversight was 

straightforward. 

60 
POST-AWARD / GOOD FAITH EFFORTS 

Sixth Street Viaduct, City of Los Angeles 

Sixth Street Viaduct Project 

California’s 6th Street Viaduct project was 

a CM/GC project with an overall project 

goal and contract goals set on 10 individual 

construction contracts. The project goal 

acted like an overall annual DBE goal for a 

recipient in that the LPA set contract goals to 

enable it to meet the overall project goal. Each 

of the 10 separate contracts in this project was 

like a normal D-B-B contract, but the CM/GC 

contractor received the first opportunity to bid 

on the contract. The LPA could either accept the CM’s bid or reject it and advertise the 

contract. However, by advertising the construction portion, the LPA ran the risk of higher 

bids and lower DBE commitments relative to the CM/GC contractor’s bid. Procedures 

already in place were applied to this project that required Caltrans’ review and approval 

of each contract goal, including a review of the GFE when the contractor failed to meet 

the contract goal. In addition, the FHWA Division required Caltrans to submit the DBE 

contract goal on the largest of its 10 contracts for the Division’s review and approval. 

Caltrans has identified four critical items that must be included in all D-B contracts to 

document and evaluate GFE: 

• A DBE Performance Plan that describes how the contractor plans on meeting the DBE goal 

(Caltrans posts an example of a DBE Plan on its website). 

• Monitoring the execution of the Plan at least quarterly. 

• Including a contractual enforcement mechanism that provides consequences for not 

meeting the goal or demonstrating adequate GFE. Caltrans uses liquidated damages, defined 

as the difference between the DBE goal and the actual DBE participation if the goal is not 

met or adequate GFE demonstrated. Without an effective enforcement mechanism and the 

willingness to exercise it, the DBE Performance Plan is just a piece of paper! 

While not a contract item, Caltrans believes that it is critical to document (at least quarterly) 

the contractor’s efforts (or lack thereof) to meet the DBE goal. This documentation, along 

with the liquidated damages enforcement mechanism, will motivate the contractor to meet 

the goal and is invaluable to the evaluation of the adequacy of the GFEs if the contractor 

fails to meet the DBE goal. 

61 
 

POST-AWARD / GOOD FAITH EFFORTS 

Presidio Parkway 

Examples of effective documentation on this 

ACM project motivated an initially reluctant 

developer to meet the DBE goal. Initially, 

Caltrans noted discrepancies between 

reported DBE participation and actual 

participation supported by documentation 

from monitoring activities, including 

tracking payments to DBEs. These included Presidio Parkway, FHWA 

discrepancies between reported trucking 

participation and documented DBE trucking participation from truck monitoring records. 

For example, on this project the developer was over-reporting DBE credit by claiming DBE 

participation and dump fees by non-DBE trucks. The State also identified over-reporting 

of DBE participation, namely: 

•Claiming credit for furnishing and installing concrete when a DBE provides only 


concrete pumping.
 

•Claiming DBE credit when a DBE is not certified to perform the work. 

•Overstating the dollar amount of DBE subcontracts. 

In addressing these issues, Caltrans documented the following: 

• Caltrans encouraged the developer to identify contracting opportunities for DBEs early in 

the project, since opportunities late in the project may not materialize. Caltrans learned 

from previous experience that if a developer must replace work that it originally planned for 

DBEs, it will have more options to find replacement work if the developer identifies these 

DBEs early in the project. 

• Caltrans questioned the reasonableness of requiring the developer to meet every work 

item it identified for DBE participation in the DBEPP. During site inspections, the developer 

asked Caltrans if it could substitute specific work items for which it committed to recruit 

DBEs with alternate work items. Caltrans documented these and similar conversations 

as an aid in evaluating the sufficiency of GFEs in the event that the developer fell short of 

meeting the contract goal. 

62 
POST-AWARD / GOOD FAITH EFFORTS 

• Caltrans learned that it is problematic when a developer that is falling behind in reaching the 

DBE contract goal, submits many documented GFEs during the last phase of the contract. 

If the developer finally makes diligent efforts to obtain DBE participation during the final 

phase of the contract, it will argue that it’s doing everything it can to meet the goal by 

submitting stacks and stacks of documented efforts. However, this contrasts with its lack of 

efforts during most of the contract period. This behavior caused Caltrans to wonder why the 

developer didn’t make these kinds of efforts earlier? Did the developer take actions of one 

that is “actively and aggressively” trying to meet the goal throughout the life of the contract?17

• Caltrans inspected the developer’s maintenance of DBE records after the FHWA Division 

Office’s first DBE site inspection revealed numerous DBE issues. This entailed a review of 

the developer’s record of its implementation of all of its DBE requirements and claims of 

DBE participation (including copies of DBE subcontracts, invoices and payments). It also 

put the developer on notice that it was responsible for fulfilling its DBE obligations. 

• Caltrans noted any responsibilities that were not being fulfilled, including discrepancies 

between reported DBEs under contract for less than committed amounts and any DBE 

payments not supported by developer documents. To remedy these shortcomings, Caltrans 

followed-up on the developer’s efforts to address (or not address) the deficiencies. This 

documentation also helped with Caltrans’ evaluation of the adequacy of the developer’s 

GFE to meet the DBE contract goal. 

17See 49 CFR Part 26, Appendix A II 63 
Goethals Bridge, FHWA 

 

Reporting
 POST-AWARD / REPORTING ON UNIFORM REPORTS

64 64

The increasing availability of web-based data collection and reporting technology is 

making it easier for owners to timely and accurately track DBE performance on projects 

and to complete semi-annual reporting. Proponents of ACM projects have utilized 

e-tracking tools as these projects often span multiple years. As a result, more owners

are implementing commercial or State-developed systems to track their entire DBE

program. This Handbook does not discuss the merits of particular tools; however,

interested practitioners should contact the project owner or FHWA Division Office for

more information.

The project sponsor only submits Uniform Reports when Federal funding is used. In 

ACM major projects, federal funds might be one of many funding sources. For example, 

on the Goethals Bridge Replacement Project, Private Activity Bonds from NJ Economic 

Development were used the first two years of the project. The project began in November 

2013 but TIFIA funds were not drawn until September 2015, which is when the sponsor 

began submitting uniform reports. 

REPORTING ON 

UNIFORM REPORTS 

OF DBE AWARDS, COMMITMENTS AND PAYMENTS 

49 CFR 26.11 & Appendix B &

Goethals Bridge, FHWA
Horseshoe Project, FHWA 

 

ongoing POST-AWARD / ONGOING OUTREACH AND EDUCATION 

outreach &
 

65 65

outreach & 

education

The most successful ACM projects included sustained outreach throughout the life of 

the project by both the owner and contractor. Supportive services offered only on the 

front end of an ACM project could set small businesses up to fail, especially as contract 

responsibilities for Federal-aid subcontractors are extensive and can be complicated 

for small businesses new to Federal requirements. Moreover, ACM contractors can only 

forecast subcontracting needs. They have no way of knowing the number or extent of 

change orders, if unforeseen issues will arise, or whether identified subcontractors will 

remain on the project. The practitioner should promote any activity that encourages the 

use, sustainability, education, and growth of small and disadvantaged businesses. 

•The Horseshoe Project in Texas required the developer to engage in outreach, 

training, and matchmaking events throughout construction of the project. 

•Virginia’s I-95 Express Lanes project required ongoing and cooperative efforts by 

the developer and VDOT 

ONGOING OUTREACH 

AND EDUCATION 

49 CFR 26.39 & 23 CFR 230.204 &

Horseshoe Project, FHWA
BEST PRACTIceS
 POST-AWARD / BEST PRACTICES 

BEST PRACTICES TO ENCOURAGE
 

/CONTRASTED WITH PITFALLS TO AVOID 

FIGURE VII 

d ENCOURAGE A AVOID 

A documented process for certifying projectlevel compliance 

Whether a standalone review or a compilation 

of compliance documentation, accountability 

is a requirement of the regulations and the only 

means of demonstrating DBE program integrity 

on projects. 

A reliable method for comparing payments 

to DBE commitments 

Whether a spreadsheet, computer program, 

or compliance review, recipients must have a 

demonstrated method of ensuring a running tally 

toward goal achievement. Despite regulatory 

flexibility, the ongoing nature of running tally 

suggests that a single evaluation may be insufficient 

to document compliance on an ACM project. 

Monitoring or Oversight Plan specific to the 

ACM project 

Documenting expectations for oversight reduces 

the likelihood of later resistance. Developers and 

contractors can also be important resources for 

identifying issues and proposing solutions. 

A proactive CUF process that is sufficiently 

broad and documented to demonstrate 

compliance 

Of the projects surveyed, the ones with fewest 

compliance issues all had established welldocumented CUF and compliance programs. The 

very best tailored procedures in anticipation of 

particular ACM project considerations. 

Certified or sworn statements of compliance 

with no underlying support or validation 

Collecting certified statements from contractors or 

recipients without a means of verification leads to the 

potential for false statements (the largest number of 

OIG investigations are related to the DBE program). 

Allowing the DBE Semiannual Uniform Report 

of Awards and Commitments to serve as the 

lone report of program performance 

The regulations now require a project level means 

of ensuring a running tally. Reliance on system-wide 

program reporting may not be enough to comply with 

26.37(b). 

Assumption that the owner’s existing 

procedures are adequate for ACM 

After twenty years of ACM experience, one Florida DOT 

manager said, “These things seem basic but they boil 

down to the same thing . . . elevating the importance of 

equal opportunity compliance on the front end avoids 

problems later on. And in major projects, problems get 

expensive - for us, for the developer and contractors, 

and ultimately for the public, our customers.” 

Rigid, burdensome CUF processes relying on 

prime contractors’ or their consultants’ CUF 

determinations 

A firm commitment to compliance is creditable, but 

when it becomes overly burdensome and resource 

intensive, it may preclude DBE use and create a 

roadblock to growth and opportunity. The owner should 

consider hiring its own CUF consultant. 

66 
POST-AWARD / BEST PRACTICES 

d ENCOURAGE A AVOID 

Use of supportive services and other 

outreach to achieve the goal 

Projects that tailored Supportive Services to major 

projects had a leg up on increasing DBE capacity 

and success. 

Innovative compliance requirements 

A lesson learned in two States resulted in a new 

requirement for P3s, namely that if at any time 

during project delivery the owner must add 

compliance resources, the developer must pay 

for them. Not likely to be popular among bidders, 

but it should elevate the importance of program 

compliance. 

Embracing technology 

RFPs, PMPs, and other contract instruments can 

specify the use of electronic systems for collecting 

and reporting data. The owner can make doing so 

the responsibility of the developer. 

Effective enforcement mechanisms, 

frequent monitoring, and documentation of 

DBE Plan implementation 

Frequent monitoring of critical DBE requirements 

such as prompt payment, GFE, return of retainage, 

and termination and replacement requirements 

are necessary as well as monitoring DBEPP and 

revising as necessary. Ongoing monitoring of DBE 

goal attainments and GFE documentation of DBE 

Plan implementation is necessary to determine if 

enforcement mechanisms are appropriate. 

Not considering the benefits of outreach and 

supportive services 

Without supportive services and outreach, the prime 

may contend it is unable to locate sufficient DBE 

participation to achieve the goal. 

Shouldering the responsibility for the entire 

compliance process 

Even though the owner is ultimately responsible 

for compliance, the methods used for review, data 

collection, and documentation can and should be 

shared. For example, verifying the accuracy of a designbuilder’s CUF may be more effective than duplicating 

the review. 

Overreliance on tech-tools without accessing 

the information or occasionally auditing the 

results 

One State learned a hard lesson on an ACM project 

currently in construction. The owner must maintain 

the right to access information created or received 

by contractors to establish compliance. Contract 

documents that require use of E-Systems must specify 

reasonable access by the project owner, regardless of 

system ownership. 

Allowing GFE to be a routine process where 

efforts are evaluated up front, prior to the 

delivery phase 

While this may be easier, it deprives DBEs of being 

considered for numerous opportunities that may 

become available during the life of the contract. 

Lack of prompt follow-up on issues, not 

questioning the reasonableness of planned 

DBE participation, infrequent monitoring of 

DBEPP execution, and lack of documentation 

of DBE issues Not addressing DBE complaints 

promptly 

Only timely, solid, accurate, and complete monitoring 

and documentation along with an effective enforcement 

mechanism will motivate a contractor to fulfill its DBE 

obligations. 

67 
FINAL
 

ACCEP

TANCE
 FINAL ACCEPTANCE 

AND BEYOND 

68 
Interstate Interstate 35 East, FHWA 35 East, FHWA 

FINAL
 

ACCEPTANCE
 

AND BEYOND
 

By now the practitioner should recognize that there is no 

one aspect of ACM projects that sets them apart from more 

traditional D-B-B method of delivery. This is true even after 

construction is complete. While the Handbook has already 

covered a number of considerations also applicable to postconstruction, this section will further discuss those identified 

on the surveyed projects. 

69 
BEYOND
 FINAL ACCEPTANCE AND BEYOND / BEYOND CONSTRUCTION 

CONSTRUCTION
 BEYOND CONSTRUCTION
 

The practitioner can be forgiven for assuming that final acceptance ends project 

level involvement. After all, nothing in traditional contracting lends itself to federally 

funded maintenance or ongoing activities. However, with ACM projects come additional 

considerations. For example, and as previously mentioned, ACM projects may include 

as “maintenance” type work anticipated future resurfacing(s) of the facility. Similarly, 

operation of the facility might require the use of various eligible professional services. 

The practitioner should remain vigilant that all Federal-aid opportunities are identified 

and that there is a compliance mechanism to provide accountability. 

There are other post-construction items that might prove helpful in administering 

or overseeing the DBE program. By no means comprehensive, the surveyed projects 

identified the following: 

I-495 and I-95 Express Lanes 

Virginia took a visionary approach to the DBE program on ACMs. It collected issues and 

suggestions identified during delivery of I-495 and developed a checklist that it then 

used on the I-95 project. This helped staff to avoid repeating mistakes or unsuccessful 

practices and to carry forward activities that were especially useful. Virginia modifies 

the checklist as warranted and currently uses it on all of its major ACM projects. It has 

the added benefit of dispelling contractor resistance in that it serves to justify recipient 

rationale for requests or requirements. 

FHWA Office of Infrastructure 

Though this Handbook has focused on recently completed projects, the workgroup 

identified a strong practice in the FHWA Office of Infrastructure. Thanks to lessons 

learned on Tappan Zee Bridge (NY), the Horseshoe project (TX), and other ACMs, Major 

Project Engineers have developed a risk-based, team approach to high profile projects 

before NEPA evaluation is completed. The engineers meet with each Division discipline 

responsible for the upcoming project, including oversight practitioners. They collectively 

score the project for risk likelihood and impacts before developing an oversight monitoring 

plan. While not every major or ACM project is assessed, this represents an interdisciplinary 

examination of projects that can be easily sized or duplicated for Divisions. 

70 
BEST PRACTICE BEST PRACTICES FINAL ACCEPTANCE AND BEYOND / BEST PRACTICES 

BEST PRACTICES TO ENCOURAGE
 

/CONTRASTED WITH PITFALLS TO AVOID 

FIGURE VIII 

d ENCOURAGE A AVOID 

Maintaining a list of lessons learned that 

can be applied to future ACM projects 

While no one project will ever be identical to 

another, each may benefit from lessons learned 

from previous projects if sufficient information 

is documented and maintained. A documented, 

experience-based rationale also makes it easier 

to explain requirements to contractors on 

upcoming projects. 

Including ACMs as part of inter-disciplinary 

discussions of risk, responsibility, and 

resource sharing 

All of those surveyed reported early cooperation 

and communication as a key to successful ACM 

delivery—an approach that fits well into the FHWA 

RBSO framework. A documented assessment 

is an excellent way of informing needs on future 

projects and continuity of knowledge despite staff 

attrition. 

Approaching each project in a vacuum without 

the benefit of past experience 

ACM projects push the limits of regulations and raise 

complicated questions—new solutions today can 

become future standard practice. Unfortunately, 

decentralized programs may not be able to measure 

effectiveness from project to project. This makes 

the Division an important part of recognizing 

trends/issues. 

‘Not my problem’ mentality 

A recurring theme in this Handbook is that shared 

responsibility results in an overall better project. This 

necessarily means that it is essential for civil rights 

and compliance staff to partner with engineering, 

inspections, and management to identify, address, 

and learn from both mistakes and successful 

practices. 

71 
RESO
 

URCES

RESOURCES 

72 
RESOURCES 

The HCR is not the only office or organization researching ACM 

practices or providing information about innovative project delivery. 

Consider the following for assistance: 

Office Q&A’s for DBE Program Regulation 49 CFR Part 26 &

US DOT’s 2016 update to the DBE Q&A’s, including the most recent information on 

prompt payment and retainage return. 

Federal Aid Essentials &

FHWA Resource Center series of videos for LPA compliance, specifically DBE overview; 

Contract Admin; Prompt Payment; Contract Goals; GFE; CUF. 

Increasing DBE Participation on Design-Build Projects &

South Carolina DOT and Division Office provide brief description of increasing DBEs on 

ACM projects. 

NCHRP Synthesis 481 &

A 2013-2015 compendium of current practices used to set and monitor DBE goals on 

design-build projects and other alternative project delivery methods. 

DBE Considerations in Procurement of Professional Services &

2016 updated Q&A’s regarding DBE program requirements 

in procurement, management and administration of 

design and engineering services. 

FDOT Specialized Development Program &

FDOT operates both FHWA and State funded supportive 

services. The Specialized Development Program assists 

contractors with locating DBEs on larger and ACM projects. 

73 
FIGURE IX
 RESOURCES / ACRONYMS / FIGURE IX 

ACRONYMS 

ACM Alternative Contracting Methods 

ARRA The American Recovery and Reinvestment 

Act of 2009 

ATC Alternative Technical Concepts 

Caltrans California Department of Transportation 

CDOT Colorado Department of Transportation 

CFR Code of Federal Regulations 

CM/GC Construction Manager/General 

Contractor 

CMR/CMAR Construction Manager at Risk 

CUF Commercially Useful Function 

D-B Design-Build 

D-B-B Design-Bid-Build 

DBE Disadvantaged Business Enterprise 

DBEPP Disadvantaged Business Enterprise 

Performance Plan 

DBFOM Design-Build-Finance-Operate and 

Maintain 

DOT Department of Transportation 

EEO Equal Employment Opportunity 

FHWA Federal Highway Administration 

FAST Act Fixing America's Surface 

Transportation Act 

GDOT Georgia Department of Transportation 

GFE Good Faith Efforts 

HCC Federal Highway Administration Office 

of Chief Counsel 

HCR Federal Highway Administration Office 

of Civil Rights 

ICC Intercounty Connector 

IHE Institutions of Higher Education 

IPD Integrated Project Delivery 

ITP Instructions to Proposers 

LPA Local Public Agencies 

MAP-21 Moving Ahead for Progress 

in the 21st Century 

MBE Minority Business Enterprise 

MNDOT Minnesota Department of 

Transportation 

MoDOT Missouri Department of Transportation 

MP Major Project 

MPO Metropolitan Planning Organization 

NEPA National Environmental Policy Act 

of 1969 

O&M Operation and Maintenance 

OIG US Department of Transportation Office 

of Inspector General 

P3 or PPP Public-Private-Partnership 

PMP Project Management Plan 

PRG Procurement Review Group 

RBSO Risk Based Stewardship and Oversight 

RFP Request for Proposals 

RFQ Request for Qualifications 

SAFETEA-LU Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A Legacy 

for Users 

TEA-21 Transportation Equity Act for the 21st 

Century 

TIGER Transportation Investment Generating 

Economic Recovery 

TIFIA Transportation Infrastructure Finance 

and Innovation Act 

USDOT United States Department of 

Transportation 

VDOT Virginia Department of Transportation 

WBE Women Business Enterprise 

74 
IN 

CLOSING 

IN CLOSING 

75 
IN CLOSING
 

In the highway construction industry, the need to provide better 

facilities with fewer resources and in less time constantly drives 

innovation and experimentation, movement that can be faster than the 

governing regulations, official guidance, and standard practices and 

procedures. This is particularly true in project delivery, as expansion 

of innovative and alternative financing, contracting, and partnering 

has far outstripped traditional regulatory interpretation of oversight 

responsibilities in Federal-aid. As stated in the Introduction to this 

Handbook, FHWA civil rights and oversight practitioners have an added 

challenge in this fast-paced, progressive environment. They are tasked 

not only with ensuring corresponding compliance oversight, but also 

that DBEs and other small businesses remain adequately positioned 

for work and have meaningful opportunities to compete for their piece 

of these innovative projects. 

The HCR hopes that this Handbook, developed in cooperation with the 

FHWA workgroup and the staffs of numerous Divisions proves helpful 

as FHWA continues to explore innovative methods to accelerate project 

delivery. The Handbook is intended to be easily comprehensible, 

practical advice for successful stewardship of DBE programs on ACM 

projects. However, although the contributors to the Handbook all have 

current or past experience in ACM, each emphasizes that it is only a 

beginning, a tool for sharing notable practices, lessons learned, and 

pitfalls to avoid. The HCR encourages civil rights and other practitioners 

to share questions, comments, advice and emerging issues on ACMs 

so that the Handbook remains a living compendium of information and 

a useful tool well into the future. 

Horseshoe Project, FHWA 

76