Federal and State Transportation Programs Favoring DBEs Found Constitutional

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In 1983, in recognition of the historical impact of discrimination on the ability of racial and minority-owned businesses to contract with the government, the federal government passed a federal disadvantaged business enterprise (DBE) programme which has been reauthorised as recently as 2015 in Section 1101(b) of the Fixing America’s Surface Transportation Act, Pub L 114-94. The purpose of the DBE programme is to require states that accept federal highway funding to attempt to spend at least 10% of federal highway funds in contracting with DBEs. However, this goal is aspirational. The federal regulations require the states to establish DBE participation goals for federally funded highway projects and attempt to reach those goals after determining the relative availability of DBEs “ready, willing and able” to participate in those projects – reflecting the level of DBE participation that would be expected absent the effects of discrimination. The states must then examine local conditions (eg, the capacity of DBEs to perform work in the state’s Department of Transport-assisted contracting programme and evidence from any disparity studies) to adjust the base figures if necessary.

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