DBE Program Regulations: Race-Neutral Measures

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.

Would the provision of plans or specifications for a project at no charge to DBEs, when other firms are charged a fee for this information, be considered a race-neutral measure? (Section 26.51)

• If plans and specifications are provided to DBEs without charge, but other firms are charged a fee for the same service, this would not be a race-neutral measure. This is because the DBE status of a firm determines whether or not the firm has to pay a fee for the information.
• On the other hand, if such plans and specifications are provided free to all small businesses, or a subcategory of “smaller” small businesses, or to all new businesses (e.g., that have been in operation less than three years), or to all businesses in a particular field, etc., then no distinction is being made on the basis of DBE status. Such an approach would be race-neutral.
• While this question concerns a measure that we view as race-conscious, there may be other measures used to facilitate increased DBE participation that we would consider to be race-neutral. For example, outreach or technical assistance measures aimed primarily at DBEs may be viewed as race-neutral.