Preliminary Note: The U.S. Department of Transportation recently released a long-awaited Notice of Proposed Rulemaking to modernize the Disadvantaged Business Enterprise (DBE) program regulations. This blog is part of a series looking at some of the significant proposed changes. A copy of all of the proposed changes can be found here: https://www.federalregister.gov/documents/2022/07/21/2022-14586/disadvantaged-business-enterprise-and-airport-concession-disadvantaged-business-enterprise-program.
Among the many potential changes announced by the U.S. Department of Transportation is a change to the rebuttal of the presumption of economic disadvantage – otherwise known as the ability to accumulate substantial wealth (“AASW”).
Under the regulations, women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, and other minorities found to be disadvantaged by the SBA, are presumed to be economically disadvantaged. 49 C.F.R. § 26.67(a)(1).
The presumption of economic disadvantage is rebuttable, even if the personal net worth calculation is below the limit. Currently, the process by which a certifier can rebut the presumption of economic disadvantage is outlined in 49 C.F.R. §26.67(b). This regulation identifies six factors that may be considered by the certifier, among other factors:
Read more here.