CITY OF SAN ANTONIO AVIATION DEPARTMENT 49 CFR PARTS 26 & 23 DBE AND SBEDA PROGRAMS OVERVIEW January 11, 2017
BACKGROUND San Antonio Airport System San Antonio Airport System is composed of the San Antonio International Airport and Stinson Municipal Airport San Antonio International Airport provides commercial airline service for the South Texas region SAT serves over 8 million passengers a year and offers nonstop service to 34 domestic and international destinations The International Airport itself is an economic generator for the region, supporting over 97,500 jobs and providing nearly $1.6 billion in annual earnings for workers and proprietors
SBEDA Program BUSINESS OPPORTUNITIES SBEDA - Small Business Economic Development Advocacy Program Purpose: To promote the utilization of small, minority and women-owned businesses on City contracts A variety of race-neutral and race-conscious tools and solicitation incentives that encourage the greater use of SMWBEs. Subcontracting Program: Requirement that a predetermined percentage of a specific contract, up to 40%, be subcontracted to SBEDA eligible SMWBEs Prime Contract Program: Allocates up to 20% of selection criteria in favor of respondents that are SBEDA eligible SMWBEs Stacking Goals SBEDA applies to contracts, not just solicitations Recent recommendations are to be considered by City Council this month.
DBE Program BUSINESS OPPORTUNITIES DBE Disadvantaged Business Enterprise Program Purpose: To facilitate DBE participation for contractual opportunities at the San Antonio International Airport System If your firm is certified as a DBE, your business: Will have the opportunity to bid on contracts for all Department of Transportation (DoT) modes statewide (Aviation, Highways, and Transit). Will have access to information on statewide DBE contracting opportunities. Will be listed in a DBE directory which will be posted on the internet and updated monthly The City will recognize all DBEs certified by the TUCP throughout the State of Texas
ACDBE Program BUSINESS OPPORTUNITIES ACDBE Airport Concessions Disadvantaged Business Enterprise Program Purpose: To facilitate ACDBE participation for contractual opportunities at the San Antonio International Airport System SAIA role in ACDBE Program is: To ensure nondiscrimination in the award and administration of opportunities for concessions by airports receiving DOT financial assistance To create a level playing field on which ACDBEs can compete fairly for opportunities for concessions To help remove barriers to the participation of ACDBEs in opportunities for concessions at our airports To provide appropriate flexibility to our airports in establishing and providing opportunities for ACDBEs
DBE PROGRAM 49 CFR Part 26
OBJECTIVES OF THE DBE PROGRAM To ensure nondiscrimination in the award and administration of DOT-assisted contracts in the Department s highway, transit, and airport financial assistance programs To create a level playing field on which DBEs can compete fairly for DOT-assisted contracts To ensure that the Department s DBE program is narrowly tailored in accordance with applicable law To ensure that only firms that fully meet this part s eligibility standards are permitted to participate as DBEs
OBJECTIVES OF THE DBE PROGRAM To help remove barriers to the participation of DBEs in DOT-assisted contracts To assist the development of firms that can compete successfully in the marketplace outside the DBE program To provide appropriate flexibility to recipients of Federal financial assistance in establishing and providing opportunities for DBEs
WHO MUST HAVE A DBE PROGRAM? SECTION 26.21 FAA recipients receiving grants for airport planning or development who will award prime contracts exceeding $250,000 in FAA funds in a Federal fiscal year.
DBE IN GENERAL Title VI Recipients prohibited from race, color, or national origin discrimination Landmark Supreme Court Decision Adarand Constructors v. Pena, 515 U.S. 200, 235, (1995) All racial classifications must pass strict scrutiny review Must serve a Compelling governmental interest Must be narrowly tailored to further that interest
49 CFR Part 26: REGULATIONS DOT (i.e. FHWA, FTA, & FAA) DBE program for recipient contracting 49 CFR Part 23: FAA DBE program for airport concessions
CONTRACTING - 49 CFR PART 26 FAA distributes about $3.4 billion annually in AIP grants to help finance airport projects Also $1.1 billion in ARRA funds, to which DBE applies Approximately 3,300 airports are eligible for AIP grants for airport planning & development FAA has a policy of ensuring that socially and economically disadvantaged businesses are able to participate in contracting opportunities created by AIP grants
PERSONAL NET WORTH (PNW) $1.32 million PNW cap, except Equity in owner s primary residence Assets invested in the business
CERTIFICATION In addition to meeting DBE requirements, firms must also meet separate SBA small business size standards for their type of business Certain groups are reputably presumed to be socially and economically disadvantaged. These include Native Americans, Blacks, Hispanics, Asian-Pacific Americans, Subcontinent Asian Americans, & Women Each disadvantaged individual seeking certification for his or her firm must submit a notarized certification of disadvantage and a statement of personal net worth
CERTIFICATION Ownership and control requirements provide detailed, specific, clarified standards for determining whether to certify firms Each state has a Unified Certification Program (UCP) that certifies DBEs for all DOT recipients in their state
SAMPLE GOAL SUBMITTAL TIMELINE April 15: Identify Opportunities May 1: Identify DBEs and Non-DBEs May 30: Consultant Process June 15: Advertise Goals August 1: Submit Goal no later than
49 CFR Part 23
GENERAL PROVISIONS ACDBE A for-profit business that: Is at least 51% owned by a socially and economically disadvantaged individual(s) The management & daily operations of the firm are controlled by the socially and economically disadvantaged individual(s) who own it Concessions include businesses, management contracts, goods and services, and advertising Anti-fraud reporting incorporates Part 26 requirements for DBEs, like no change affidavit, requirement to report material changes regarding PNW, size, control etc, and requirements for recipients to have monitoring and compliance mechanisms Must include levels of effort and resources devoted to this (i.e. frequency of review of records, on-site reviews, etc.)
OTHER PROVISIONS DBE statute does not preempt state or local law State or local law, policy, or regulation must be administered separately from ACDBE program If conflict exists, the requirements of 49 CFR Part 23 will prevail Rule requires a firewall between ACDBE program and local requirements to avoid subjecting Federal program to constitutional challenge
SIZE STANDARDS $52.47 million in gross receipts for most ACDBE firms Averaged over previous three fiscal years $69.97 million for car rentals $1 billion in assets for banks 1,500 employees for pay phone companies 350 employees for automobile dealers Expect an inflationary adjustment
ACDBE PROGRAM PROVISIONS Goal submission due dates staggered over three years Primary Airports must submit revised ACDBE goals on the following schedule: Large/medium Hubs 10/01/11 Small Hubs 10/01/12 Non-Hub Primaries 10/01/10 and every three years on October 1 st thereafter
ACDBE PROGRAM PROVISIONS Administrative Provisions Policy Statement Liaison Officer Direct access to chief executive officer May manage both DBE & ACDBE Programs ACDBE Directory Certification of ACDBEs Statement of nondiscrimination in ACDBE Program
ACDBE PROGRAM PROVISIONS Non-Discriminatory Participation Sponsor must list steps to be taken Include race neutral measures Require good faith efforts to meet ACDBE goals No set-asides or quotas Reporting Sponsors must submit annual ACDBE participation Reports each March 1st
ACDBE PROGRAM PROVISIONS Certification Except for size and PNW standards, the eligibility criteria of Part 23 for ACDBEs are almost identical to those of Part 26 for DBEs Certification of ACDBEs and all other DBEs are handled by the UCP in each state UCPs/Airports had up to three years to review certifications of current ACDBEs to ensure that they met Part 23 criteria Firms required to submit personal net worth statements, certification of disadvantage and affidavit of no change
ACDBE PROGRAM PROVISIONS Overall Goal Calculation for Concessions Other Than Car Rentals Amount of Goal Methodology Consultation Breakout of Race-Neutral and Race-Conscious
ACDBE PROGRAM PROVISIONS Overall Goal Calculation for Car Rentals Amount of Goal Methodology Consultation Breakout of Race-Neutral and Race-Conscious
AIRPORT MONITORING AND ENFORCEMENT ACDBE programs must include the monitoring and compliance measures the airport will use, including levels of effort and resources devoted to this task Describe the frequency of reviews or records, on-site reviews of concession workplaces, etc., to determine whether ACDBEs are actually performing the work for which credit is being claimed This type of oversight is crucial to combating ACDBE fraud, and FAA will closely scrutinize this aspect of ACDBE programs
AIRPORT MONITORING AND ENFORCEMENT Airport Sponsor subject to compliance reviews by Office of Civil Rights 14 CFR Part 16 Airport Enforcement Proceeding Withhold grant funds Terminate grant eligibility DOJ referral for DBE/ACDBE Program Fraud Jail Fines Suspension and Debarment Listed on the Federal Government s Excluded Parties List System; not eligible to participate in Federal contracts DOT directive to UCP to initiate proceeding to remove DBE/ACDBE certification
SBEDA PROGRAM Promotes utilization of Small, Minority, and Women- Owned Businesses (SMWBEs) Applies to COSA contracts over $50,000 Even if no solicitation is issued, goal setting process remains the same for: Cooperative agreements Funding agreements Developer agreements
AVIATION SMALL BUSINESS SERVICES Goal-setting SMWBE Outreach Central Vendor Registry Support Assessing Bidder Submissions for Responsiveness & Prime points eligibility Responding to Waiver Requests Monitoring & Compliance Reporting
GOAL SETTING PROCESS Aviation staff work with PMs/Procurement Staff to prepare packet which includes: Est. contract value and description of scope of work Breakdown of work and estimated value of each trade Three historical projects of similar size and scope Packet submitted to EDD one week prior to committee meeting EDD issues goal recommendation two days prior to meeting
GOAL SETTING PROCESS Committee convenes to review and approve final SBEDA goals Director/ADs vote high profile contracts Citizens participate in all GSC meetings and vote on contracts $3M and over Originating Designee vote on non-high profile contracts SBEDA solicitation language and forms available three days after meeting Solicitation is released
49 CFR PARTS 26 & 23 DBE AND SBEDA PROGRAMS OVERVIEW