All prime contractors please take note that the DBE utilization plans, both forms SBE 2025 and SBE 2026, are required to be submitted with the bid on all construction contracts that contain a specified goal in the special provision for Disadvantaged Business Enterprise Participation. Based on recent FHWA clarification, the DBE Special Provision has been updated to clarify what conditions warrant providing the bidder an opportunity for an administrative reconsideration and what documentation may be provided during the reconsideration process.

Under the DBE Special Provision the bidder must either document that it has obtained enough DBE participation to meet the contract DBE goal or, in the event that the bidder has not obtained enough DBE participation to meet the contract DBE goal, documented good faith efforts. If the Department determines that the apparent low bidder has either failed to achieve the contract DBE goal or failed to provide sufficient documentation of its good faith efforts, the bidder will be afforded an opportunity for an administrative reconsideration at which time additional written documentation or argument of the bidder’s good faith efforts made prior to the bid may be submitted.

The additional documentation that may be provided and considered during the reconsideration should be limited to information further supporting the bidder’s original submittal. In limited cases, where a bidder had genuinely thought it had achieved the DBE goal but a review of the Utilization Plan establishes that the goal was not met, the bidder may submit documentation of its good faith efforts that were made prior to submitting its bid. Allowing additional documentation to be submitted during an administrative reconsideration is not intended to be a method by which a bidder may circumvent the intent of the regulations and the DBE Special Provision by withholding required documentation until the time of a reconsideration proceeding. It is also not intended to allow a bidder to wait until after submitting a bid, but in advance of the reconsideration proceedings, to begin making good faith efforts to meet the goal.