DBE Program Regulations: Certification Appeals

DOT has released Official FAQs on DBE Program Regulations. These questions and answers provide guidance and information for compliance with the provisions under 49 CFR part 26. Like all guidance material, these questions and answers are not, in themselves, legally binding or mandatory, and do not constitute regulations.

Must a recipient have an internal appeal system for applicants who are denied certification or decertified? if there is such a process, must it include providing a verbatim transcript of the original proceeding to the firm for purposes of the internal appeal? Section 26.83 -26.89

• There is no requirement for recipients to establish an internal appeal system. Recipients have the discretion to establish such a system, however.
• Once a recipient has made an administratively final denial or decertification decision (i.e., one that means the firm cannot participate in the recipient’s DOT-assisted contracts as a DBE), the firm may appeal the result to DOT under 26.89.
• If a recipient has established an internal appeals system, a firm is not required to exhaust this remedy before appealing an administratively final decision to DOT under 26.89. However, if a firm chooses to appeal through the recipient’s internal appeal process, the Department will not act on a 26.89 appeal until completion of the recipient’s proceeding.
• The details of any internal appeal process a recipient establishes should be part of the recipient’s revised DBE program. DOT will look at the process to make sure that it is fair.
• A vebatim record is required in decertification actions (see 26.87(d)(2)). For denials of applications for certification, part 26 does not require a verbatim record. Either a verbatim record or another means that gives the appellant the opportunity to review the record of the initial proceeding in detail is permissible. This is important to a fair appeal proceeding, since it gives the appellant the opportunity to make effective arguments about the initial proceeding.