EPA Publication Number 202K09001
EPA Contract Number EP-W-08-042
Learner Manual - Module 9
Disadvantaged Business Enterprises (DBEs)
TRIBAL, U.S. TERRITORIES AND
INSULAR AREAS ADMINISTRATIVE
AND FINANCIAL GUIDANCE
MANUAL FOR ASSISTANCE
AGREEMENTS
"A Nation is a stable, historically developed community of people
who share territory, economic life, distinctive culture, and language.
Office of Environmental Justice, U.S. EPA
U.S. Environmental Protection Agency
Updated August 2013
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Module 9: Disadvantaged Business Enterprises (DBEs)
This manual was originally developed by the U.S.
Environmental Protection Agency for Tribal Nations,
but content also pertains to U.S. Territories and Insular
Areas. Exception: U.S. Territories and Insular Areas are
treated as states under Part 31 (and also under Part 35,
Subpart A for PPGs, unlike Tribes that are covered
under Subpart B).
Contents
MODULE 9: DISADVANTAGED BUSINESS ENTERPRISES (DBES).
OFFICE OF SMALL BUSINESS PROGRAMS (OSBP) 3
DISADVANTAGED BUSINESS ENTERPRISES (DBEs) 5
Six GOOD FAITH EFFORTS 7
Bidders List 10
DISADVANTAGED BUSINESS ENTERPRISE (DBE) CERTIFICATION 11
DISADVANTAGED BUSINESS ENTERPRISE (DBE) REPORTING 15
1. INCLUDE OF MBES/WBES ON SOLICITATION LISTS 20
Contract Administration 26
FAIR SHARE OBJECTIVES 27
Negotiation 29
Adoption 31
Analyze the Market 33
Submit the determined fair share objectives 36
ATTACHMENT TO MODULES 39
Answers to Self-Assessment Questions 39
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
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Module 9: Disadvantaged Business Enterprises (DBEs)
Module 9: Disadvantaged Business Enterprises (DBEs)
Tribal, U.S. Territories and
Insular Areas Administrative and
Financial Guidance for
Assistance Aere<
Module!
I )isiulv;i ntagrtl 1
i
Goal of the EPA DBE Program
I nci'ease participation of Disadvantaged
Business Enterprises (DBEs) in projects
funded by EPA assistance agreements by
making "good faith efforts" to seek out and
utilize a "fair share" of DBEs for all
procurement needs.
The Grants Management Process
Modul E A£
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Module 9: Disadvantaged Business Enterprises (DBEs)
DBE Program
Th* DBE Program Bi>
requirement of every EPA grant
Th* Office nf Sm. ill F'.IMIIH««
Programs B responsible for
I«-|H v ;mj I'rot lurnl tfinlait^'
Tta DBE pntRiniii em'olittiKes
fetlelnl do U^irs lo flow clumi to
nesses (such
DEE policy ensures
disadvantage*! businesses
I.-, el... tli*>u fmr share of
federally ruwlev-l projects
What does the DBE Program do?
The DBE Program is a requirement of every EPA
assistance agreement. The program encourages
federal dollars to flow down to disadvantaged
businesses (such as Tribally-owned businesses)
through a grant recipient's purchases and
procurements. The fair share policy ensures
disadvantaged businesses get their fair share of
federally funded projects.
When a Tribal Nation accepts an assistance
agreement award, they agree to make a "good faith
effort" to use disadvantaged businesses for at least
a percentage of their procurement needs. The grant
recipient must file a DBE report before the grant
can be closed out, whether or not any DBEs
receive the awarded grant funds.
negotiate "fair share" goals were revised.
Information regarding this rule can be found at the
following web site:
http://www.epa.gov/osbp/grants.htm. Since this
was a new requirement for the tribes, EPA agreed
to conduct a three-year phased-in approach. Full
compliance was required by May 2011. Tribal
Nations that have Performance Partnership Grants
(PPGs) are exempt from this requirement.
The Disadvantage Business Enterprise program
will be reviewed after seven years to evaluate its
effectiveness. The information you share will help
to make this program more effective.
Learner Notes
It is EPA's policy that recipients of EPA
financial assistance, under EPA grants,
cooperative agreements, and interagency
agreements, award a "fair share" of prime
contracts or subagreements to
disadvantaged businesses.
This rule became effective on May 27,
2008 and had a three-year phase in period.
The Phase in Period
PDERulrs
Effi-clivr
iooS
2009
Full DBE
Compliance
20J1
How does this program affect our Tribal Nation?
The EPA Office of Small Business Programs
instituted the "fair share policy". The fair share
policy requires Indian Tribes, U.S. Territories, and
others who receive financial assistance from EPA
to make "good faith efforts" to award a portion of
their financial assistance procurement dollars to
Disadvantaged Business Enterprises (DBEs).
With the passage of the DBE rule on May 27,
2008, requirements on the Tribal Nations to
_is defined as the acquisition through
contract, order, purchase, lease, or barter of
supplies, equipment, construction, or services
needed to accomplish federal assistance program
objectives.
A. Contract
B. Procurement
C. Purchase
D. Sole source
E. None of the above
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Module 9: Disadvantaged Business Enterprises (DBEs)
Contracts
A contract is:
A mutually binding
legal relationship
Obligating the seller
to furnish supplies or
services (including
construction) and
Obligating the buyer
to pay for them.
What does EPA call a "contract"?
A contract can be a procurement contract under a
grant or subgrant or a procurement subcontract
under a contract. A contract is a mutually binding
legal relationship obligating the seller to furnish the
supplies or services (including construction) and
obligating the buyer to pay for them. It includes all
types of commitments to an expenditure of
appropriated funds and that, except as otherwise
authorized, are in writing.
In addition to bilateral instruments, contracts
include (but are not limited to):
Awards and notices of awards
Job orders or task orders issued under
basic ordering agreements
Letter contracts
Orders, such as purchase orders, under
which the contract becomes effective by
written acceptance or performance
Bilateral contract modifications
The Disadvantaged
Business Enterprise Program
DBI
Prime contracts or
subagreements
redirect EPA funds
other businesses.
The DBE program ensures
that disadvantaged
businesses are given the
opportunity to participate.
Disadvantaged Business Enterprises
(DBEs)
What is the Disadvantaged Business Enterprise
(DBE) program?
It is EPA's policy that recipients of EPA financial
assistance, under all EPA grants, cooperative
agreements, and interagency agreements, award a
"fair share" of prime contracts or subagreements to
disadvantaged businesses. Prime contracts or
subagreements redirect EPA funds to other
businesses.
The DBE program ensures that disadvantaged
businesses are given the opportunity to participate.
Recipients of EPA assistance agreement awards are
required to make "good faith efforts" to seek out
and utilize DBEs for all their procurement needs.
When the recipient accepts an award, it agrees to
comply with the requirements of EPA's Program
for Utilization of Minority and Women's Business
Enterprises in procurement under assistance
agreements as stipulated in 40 CFR Subchapter B,
Part 33, Participation by Disadvantaged Business
Enterprises in United States Environmental
Protection Agency Programs, available at
http://ecfr.gpoaccess.gov and in the Appendix.
Disadvantaged Business Enterprises
DBEs include:
Women-owned Business Enterprises (WBEs) and
Minority Business Enterprises (MBEs), such as:
Native American- owned Businesses
Small Business Enterprises (SBEs)
Small Businesses in Rural Areas (SBRAs)
Labor Surplus Area Firms (LSAFs)
Historically Underutilized Businesses (HUB Zone)
Veteran-owned Businesses
And more...
Which businesses qualify as disadvantaged?
These entities are owned and/or controlled by
socially and economically disadvantaged
individuals as described by Title X of the Clean Air
Act Amendments of 1990 (42 U.S.C. 7601 note)
(10% statute), and Public Law 102-389 (42 U.S.C.
4370d) (8% statute), respectively. If a business is
not certified as a Women Business Enterprise
(WBE) or Minority Business Enterprise (MBE)
then it cannot be considered when reporting
procurement dollars spent.
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
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Module 9: Disadvantaged Business Enterprises (DBEs)
The Buy Indian Act
EPA encourages the procurement of goods and
services through:
° Native American-owned Businesses
Businesses owned by American Indians or others
having a Tribal enrollment number
= Minority-owned Business Enterprises (MBE)
" Women-owned Business Enterprises (WEE)
Who qualifies as a Disadvantaged
Business Enterprise (DBE)?
A. Small businesses in rural and urban areas
B. Historicallyunderutilizedbusinesses
C. Businesses owned by women
D. Businesses owned by minorities
E. All of the above
Why should our Tribal Nation consider using
Disadvantaged Business Enterprises (DBE)?
Most DBEs are small businesses. Encouraging
recipients to use DBEs helps smaller businesses
compete with more established and better financed
operations so that the country maintains an
interesting and diverse group of competitors from
which to buy products or services. Using DBEs
increases the pool of available and qualified
vendors and contractors. It ensures opportunities
are spread equitably.
The Buy Indian Act (Title 48 of the Federal
Acquisition Regulations System, Part 370 special
Programs Affecting Acquisition, Section 370.5)
encourages the use of Native American-owned
businesses. Businesses owned by American Indians
qualify as DBEs in many different ways:
Businesses owned by American Indians or
others having a Tribal enrollment number
are minority owned businesses (MBE).
Some of the businesses are also owned by
women (WBE).
A major goal of any Tribal government is
employment of its Tribal members. EPA
encourages the use of grant funds within the Tribal
Nation by procuring goods and services through
Native American-owned businesses. Some Nations
already have policies that mandate the hiring of
Tribal businesses whenever possible. When Native
American-owned businesses are not available, the
use of other disadvantaged business enterprises is
encouraged.
DBE program requirements are
effective the date the assistance
award is signed.
IWBE
Signature
WBE
How does the DBE program impact our project?
The ten EPA regional offices work with states,
Tribal Nations, U.S. Territories, and other
recipients to ensure that this policy is implemented.
DBE program "terms and conditions" are
incorporated into all assistance agreements, and
affect all four procurement categories (i.e.,
services/contractual, supplies, equipment, and
construction).
DBE program requirements are effective the date
the assistance award is countersigned, or at the
beginning of the project period, not when
expenditures are made.
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Module 9: Disadvantaged Business Enterprises (DBEs)
DBE Requirements Flow Down
Recipient mEt report
DEE contract.
Prirnarvcontractors aie
required to reportuseof
DEEs.
Subcontractors are not
required to report ^ c:'
DBEs.
Prime contractors report to the recipient.
The recipient reports to the EPA project officer.
Are contracted businesses required to follow the
DBE rule?
The DBE program requirements "flow down" from
the EPA award recipient to sub-recipients, sub-
awardees, and prime contractors.
DBE reporting requirements do not flow
past the primary contractor level.
DBE primary contractors are required to
use DBEs whenever possible.
Sub-contractors who work for the prime
contractor are not subject to EPA DBE
requirements. Although the prime
contractor may have a subcontractor
whom they report on, only grant recipients
and prime contractors are required to
report on their contracting, DBE or
otherwise.
Tier 1 and 2 requirements include:
Negotiation of fair share objectives
Availability analysis
Application of objectives
Use of good faith efforts
Contract administration provisions
Bidders list
Documentation
Submission of DBE reports
Passing the DBE requirements to its sub-
recipients, loan recipients, and prime
contractors
Tier 3 requirements include:
Application of fair share objectives
Use of good faith efforts
Documentation
Submission of DBE reports
Contract administration provisions
Prime contractors report to the recipient.
The recipient reports to the EPA Project Officer.
DBE "Terms and Conditions"
Tribal Nations are required to comply with:
° Title 40 of the Code of Federal Regulations
(40 CFR) Protection of Environment
" Part 33 Participation by Disadvantaged Business
Enterprises in United States Environmental
Protection Agency Programs
° SubpartC, Good Faith Efforts
Six Good Faith Efforts
Must a Native American (either as an individual,
organization, Tribe or Tribal Government)
recipient or prime contractor follow the six good
faith efforts?
The terms and conditions contained in EPA
financial assistance agreements require the Tribal
Nation to make good faith efforts to locate and use
disadvantaged business enterprises.
Title 40 of the Code of Federal Regulations (40
CFR), Protection of Environment, Part 33,
Participation by Disadvantaged Business
Enterprises in United States Environmental
Protection Agency Programs, Subpart C, Good
Faith Efforts, Item 33.304 states:
(a) A Native American (either as an individual,
organization, corporation, Tribe or Tribal
Government) recipient or prime contractor
must follow the six good faith efforts only if
doing so would not conflict with existing Tribal
or Federal law, including but not limited to the
Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450e)*, which
establishes, among other things, that any
federal contract, subcontract, grant, or
subgrant awarded to Indian organizations or
for the benefit of Indians, shall require
preference in the award of subcontracts and
subgrants to Indian organizations and to
Indian-owned economic enterprises.
(b) Tribal organizations awarded an EPA
financial assistance agreement have the
ability to solicit and recruit Indian
organizations and Indian-owned economic
enterprises and give them preference in the
award process prior to undertaking the six
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Module 9: Disadvantaged Business Enterprises (DBEs)
good faith efforts. Tribal governments with
promulgated tribal laws and regulations
concerning the solicitation and recruitment of
Native-owned and other minority business
enterprises, including women-owned business
enterprises, have the discretion to utilize these
tribal laws and regulations in lieu of the six
good faith efforts. If the effort to recruit Indian
organizations and Indian-owned economic
enterprises is not successful, then the recipient
must follow the six good faith efforts. All tribal
recipients still must retain records
documenting compliance in accordance with
§33.501 and must report to EPA on their
accomplishments in accordance with §33.502.
(c) Any recipient, whether or not Native
American, of an EPAfinancial assistance
agreement for the benefit of Native
Americans, is required to solicit and recruit
Indian organizations and Indian-owned
economic enterprises and give them
preference in the award process prior to
undertaking the six good faith efforts. If the
efforts to solicit and recruit Indian
organizations and Indian-owned economic
enterprises are not successful, then the
recipient must follow the six good faith
efforts.
(d) Native Americans are defined in §33.103 to
include American Indians, Eskimos, Aleuts and
Native Hawaiians.
*The complete Indian Self-Determination and
Education Assistance Act is available at
http: //www. law. Cornell, edu/uscode/2 5/usc_sup_01 _2 5
10_14_20_n.html.
40 CFR Part 33 is provided in the Appendix.
Six Good Faith Efforts
Plan ahead
Reach out to
DBEs
Consider DBE
consortiums
Keep tasks small
Tell Prime
Contractors
Use the SBA and
MBDA
SBA is the U.S. Small Business Administration.
MBDA is the Minority Business Development Agency.
What purpose is served by the six good faith
efforts?
The "good faith efforts" are methods required to be
implemented by all EPA financial assistance
agreement recipients to ensure that disadvantaged
business enterprises (DBEs) have the opportunity
to compete for procurements funded by EPA
financial assistance dollars. Procurement includes
all expenses whether accomplished through
contracts, subcontracts, loans, and subawards,
space and equipment leased or purchased outright
for construction, equipment, supplies, and services.
EPA's "Six Good Faith Efforts" offer a more
current version of the "Six Affirmative Steps" and
the "Six Positive Efforts" which you may already
be familiar with. The good faith efforts are
methods required by EPA in 40 CFR Part 33. A
Tribal Nation remains compliant as long as it
makes a "good faith effort" to apply the six
affirmative steps outlined by the EPA.
40 CFR Part 33 is provided in the Appendix.
What are the six good faith efforts?
1. Ensure DBEs are made aware of
contracting opportunities to the fullest
extent practicable through outreach and
recruitment activities. For Tribal Nations,
state and local and government recipients,
this will include placing DBEs on
solicitation lists and soliciting them
whenever they are potential sources.
2. Make information on forthcoming
opportunities available to DBEs and
arrange time frames for contracts and
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Module 9: Disadvantaged Business Enterprises (DBEs)
establish delivery schedules, where the
requirements permit, in a way that
encourages and facilitates participation by
DBEs in the competitive process. This
includes, whenever possible, posting
solicitations for bids or proposals for a
minimum of 30 calendar days before the
bid or proposal closing date.
3. Consider in the contracting process
whether firms competing for large
contracts could subcontract with DBEs.
For Tribal Nations, state and local
government recipients, this will include
dividing total requirements when
economically feasible into smaller tasks or
quantities to permit maximum
participation by DBEs in the competitive
process.
4. Encourage contracting with a consortium
of DBEs when a contract is too large for
one of these firms to handle individually.
5. Use the services and assistance of the U.S.
Small Business Administration, Office of
Native American Affairs
(http://www.sba.gov/aboutsba/sbaprograms/na
a/index.html') and the Department of
Commerce, Minority Business
Development Agency
(http://www.mbda.gov/). (Some Nations
only allow Tribally owned and/or Tribally
approved subcontractors. Check your
Tribal Nation's policy to determine which
Tribal businesses are eligible.)
6. If the prime contractor awards
subcontracts, require the prime contractor
to take the steps in paragraphs (1) through
Learner Notes
Understanding the Six Good Faith Efforts
is the first step toward DBE outreach.
Take a few minutes to get together at your
table to do Activity B.a (found online at
www.petetribal.org). Share interpretations
and clarify anv confusion.
(5) of this section.
Outreach Never Stops
The six steps constitute:
° Outreach
" Recruitment
- Other race/gender neutral activities
* EPA does not believe it is appropriate for
these activities to be discontinued by a
recipient merelybecause it reaches the DBE
goals early.
Make the Six Good Faith Efforts part of your
policies and procedures.
Make them a part of your daily business routine.
Do we have to continue to comply with the six
steps after reaching the goals set forth in the
assistance agreement award?
Yes, the six steps constitute outreach, recruitment,
and other race/gender neutral activities. EPA does
not believe it is appropriate for these activities to
be discontinued by a recipient merely because it
reaches the DBE goals early.
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Module 9: Disadvantaged Business Enterprises (DBEs)
Compliance
If EPAfinds out afterthe contract has been
awarded to the prime contractor that it has not
complied with the six steps,
EPA can suspend or terminate the recipient's
award or withhold payments to the grant
recipient until it takes corrective action.
What happens if a prime contractor does not
comply with the six steps?
The prime contractor needs to show that they are
compliant with the good faith efforts. A big part of
complying with good faith efforts (i.e., outreach to
DBEs and breaking large contracts into smaller,
more manageable sized contracts) is done before
the grant is awarded. Additional compliance
consideration is done after the contract is awarded
and when a prime contractor determines they need
to subcontract the work.
Compliance is the bidders' responsibility. The
prime needs to be made aware of their
requirements to the DBE rule. If EPA finds out
after the contract has been awarded to the prime
contractor that it has not complied with the six
steps, EPA can suspend or terminate the recipient's
award or withhold payments to the grant recipient
until it takes corrective action.
Maintain a Bidders List
Bidders List
What is a bidders list?
The list of eligible businesses, both DBE and non-
DBE, created by the Tribal Nation is called a
"bidders list". The "new" DBE rule requires
recipients of an EPA financial assistance
agreement that award contracts to create and
maintain a bidders list. Contact information for
businesses in the market region is listed and kept
current (checked annually at least). Businesses
should be arranged alphabetically and by the
equipment and service provided. The bidders list
simplifies the process of finding eligible and
available vendors when needed.
Recipients of an EPA financial assistance
agreement to capitalize a revolving loan fund agree
to require entities receiving identified loans to
create and maintain a bidders list if the recipient of
the loan is subject to or chooses to follow
competitive bidding requirements. See 40 CFR,
Part 33, Section 33.501(b) and (c) for specific
requirements and exemptions.
A more complete sample bidders list is provided in
Activity 9.c, located at www.petetribal.org.
How do we use the list of eligible businesses?
The purpose of a bidders list is to provide the most
accurate information possible about businesses
when conducting competitive bidding.
EPA requires:
A recipient of any EPA assisted project
must include all firms that bid or quote on
prime contracts or subcontracts in a
bidders list.
A recipient of a Continuing
Environmental Program Grant or other
annual grant must create and maintain a
bidders list.
A recipient of an EPA financial assistance
agreement to capitalize a revolving loan
fund also must require entities receiving
identified loans to create and maintain a
bidders list if the recipient of the loan is
subject to, or chooses to follow,
competitive bidding requirements.
How long do we keep the bidders list?
The list must only be kept until the grant project
period has expired and the recipient is no longer
receiving EPA funding under the grant. For entities
receiving identified loans, the bidders list must
only be kept until the project period for the
identified loan has ended.
What information must be retained on the
bidders list?
Entity' s name with point of contact
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Module 9: Disadvantaged Business Enterprises (DBEs)
Entity's mailing address, telephone
number, and email address
The procurement on which the entity bid
or quoted
Date when the bid or quote is made
Entity's status as a DBE
Bidders List Exceptions
EPA award totals $250,000 or less
Two or more awards totals $250,000 or less
The following loans total S25O,oooor less:
= Clean Water State Revolving Fund
= Drinking Water State Revolving Fund
" Brownfields Cleanup Revolving Loan Fund
$250,000 or less
What are the exemptions to the bidders list
requirements?
A recipient of an EPA financial assistance
agreement in the amount of $250,000 or less for
any single assistance agreement, or of more than
one financial assistance agreement with a
combined total of $250,000 or less in any one
fiscal year, is exempt from the requirement to
create and maintain a bidders list.*
A recipient under the Clean Water State Revolving
Fund, Drinking Water State Revolving Fund, or
Brownfields Cleanup Revolving Loan Fund
program is not required to apply the bidders list
requirement to an entity receiving an identified
loan in an amount of $250,000 or less, or to an
entity receiving more than one identified loan with
a combined total of $250,000 or less in any one
fiscal year.*
*These exemptions are limited to the bidders list
requirements only. Good faith efforts and reporting
will always be required with an EPA assistance
agreement regardless of the funding amount.
Discussion
Do you have written good faith
effort or affirmative action
policies?
How do you provide procurement
for subcontractors?
How do you maintain your
subcontractor bidders list?
Learner Notes
This is a good time to share information on
how you collect, record, and maintain
contractor information. Discuss the
questions above. Then try Activity 9.b
(online at www.petetribal.orgX
DBE Certification
DBE s must be certified in order to be counted
toward a recipient's DBE accomplishments.
Accomplishments are the DBE procurements
reported on the EPA Form
5700-52A.
Disadvantaged Business Enterprise
(DBE) Certification
What are DBEs?
An organization may apply for disadvantaged
business enterprise certification, if it is owned by a
majority of individuals with any of the following
qualifications.
Disadvantaged Business Enterprises (DBEs)
include:
Women Business Enterprises (WBEs)
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Module 9: Disadvantaged Business Enterprises (DBEs)
Minority Business Enterprises (MBEs)
Native American-owned Business
Small Business Enterprise (SEE)
Small Business in a Rural Area (SBRA)
Labor Surplus Area Firm (LSAF)
Historically Underutilized Business
(HUBZone)
Other entities meeting EPA's DBE Rule
criteria
These entities are owned and/or controlled by
socially and economically disadvantaged
individuals as described by Title X of the Clean Air
Act Amendments of 1990 (42 U.S.C. 7601 note)
(10% statute), and Public Law 102-389 (42 U.S.C.
4370d) (8% statute), respectively. EPA does check
to be sure DBEs are valid and certified minority or
women-owned businesses. The Inspector General
will investigate suspicious certifications.
DBEs must be certified in order to be counted
toward a recipient's DBE accomplishments.
What are the EPA DBE certification
requirements?
To qualify as a DBE under EPA programs an entity
must establish that it is at least 51 percent owned
and/or controlled by socially and economically
disadvantaged individuals who are of good
character and are citizens of the United States.
An individual claiming economic disadvantaged
status must have an initial and continued personal
net worth of less than $750,000.
How does certification affect a firm's
participation in the overall DBE program?
In order for a firm to be counted towards a
recipient's Disadvantaged Business Enterprise
utilization, a firm must be certified. Non-certified
DBEs may be used by recipients for their
procurement needs. However, those firms cannot
be counted toward the Tribal Nation's DBE
accomplishments.
Only minority and women business enterprises are
reported on EPA Form 5700-52A. If a business is
not certified as a MBE/WBE then it cannot be
considered when reporting procurement dollars
spent. DBE Program outreach efforts, however,
apply to all disadvantaged businesses not just
minority and women business enterprises. Tribal
businesses certified as minority or women business
enterprises count toward DBE Program outreach
and reporting requirements.
Who is responsible for certifying DBE firms?
In order to be certified and count toward a
recipient's DBE accomplishments, a business must
first attempt to be certified by the U.S. Small
Business Administration (SBA) or Department of
Transportation (DOT). If neither of those
organizations agree to certify the business, it can
request certification from other agencies. Asking
EPA for certification should be used only when all
other attempts have been unsuccessful.
If a business is denied certification by both of these
organizations, it may apply for EPA certification.
However, EPA certification is only valid for EPA
programs, whereas SBA and DOT certification are
applicable to many different federal programs.
EPA Office of Small Business Programs (OSBP)
headquarters in Washington, D.C. is responsible
for implementing and processing applications for
DBE certification from EPA. Regional DBE
coordinators will assist by providing forms to
interested firms and fielding general questions.
If a grant recipient is working with a business that
is eligible for certification, it should recommend
the business contact the following agencies in the
order given.
1. Small Business Administration (SBA)
certifies businesses as Minority Business
Enterprises (MBE) and Women Business
Enterprises (WBE).
2. Department of Transportation (DOT)
certifies businesses as Disadvantaged
Business Enterprises (DBE).
3. Other agencies certify under these and
additional categories.
4. EPA certifies businesses only when a
business is previously denied certification
by the DOT and SBA.
The states and Tribal Nations have no
responsibility to implement or maintain a
certification program for EPA.
Certifying Agencies
Department of Transportation
(DOT)
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Module 9: Disadvantaged Business Enterprises (DBEs)
How do DBEs get certified?
DBEs must be certified by one of the following
federal offices:
Small Business Administration (SBA)
(U.S. citizenship required)*
Department of Transportation (DOT)
(U.S. citizenship required)
Environmental Protection Agency (EPA)
(if first rejected by another source)
* Even when SBA allows self-certification, EPA
accepts SBA standards.
Non-federal certification alternatives include:
Tribal Employment Rights Office (TERO)
State governments**
Local governments
Tribal governments
Private entities
*Non-federal criteria must meet or exceed EPA
standards for certification.
** States are not required to develop or implement
a new certification program.
The certification process can take as much as four
months to complete. Certification lapses can occur.
Check certification status before signing the
contract. Certifications are typically renewed every
three to eight (3-8) years depending on the
certifying agency.
If an entity holds one of these certifications, it is
considered acceptable for establishing DBE status
under EPA's DBE Program, and application for
EPA certification is not needed. EPA can certify
entities; however, they must first be rejected by
another source before seeking EPA certification.
EPA certification is not accepted by any agency
other than the EPA.
How do DBEs get EPA certified?
An EPA DBE Certification Application form can
be downloaded from
http://www.epa. go v/osbp/pdfs/dbe/cert_form_tribes%20-
.pdf.
The most versatile and highly-recognized business
certifications come from the SBA and DOT. An
entity can check its certification status with the
SBA through their online database.
<§)
EPA DBE Certification Process
The application includes the following:
° Sworn affidavit
- Proof of DBE status
= Documentation of a
denial of certification
by other federal agencies
What does the EPA certification process entail?
Applications are filed with the EPA's Office of
Small Business Programs (OSBP). Applications
can be obtained from EPA OSBP, from regional
DBE Coordinators, and from EPA OSBP's
website, http://www.epa.gov/osbp/dbe_team.htm.
The application includes the following:
An attestation to the accuracy and
truthfulness of the information on the
application form by sworn affidavit, or an
unsworn declaration executed under
penalty of perjury of the laws of the
United States
Evidence demonstrating that the entity is
owned and/or controlled by one or more
individuals claiming disadvantaged status,
along with certifications or narratives
regarding the disadvantaged status of such
individuals
Documentation of a denial of certification
by a federal agency, state government,
local government, Tribal government, or
independent private organization, if
applicable
DBE Certification Qualifications
cd by 51% DBE
Keep a copy of the certification letter on file.
Notified
within
30 days
I
EPA Office of Small
Business Programs
(OSBP) will make its
certification decision
within 30 days of
receipt of a complete
and suitable application
package.
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
Last Updated April 2013
Page 13 of 41
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Module 9: Disadvantaged Business Enterprises (DBEs)
Once applications are filed, EPA OSBP will advise
each applicant within 15 days, whether the
application is complete and suitable for evaluation
and, if not, what additional information or action is
required.
EPA Office of Small Business Programs (OSBP)
will make its certification decision within 30 days
of receipt of a complete and suitable application
package.
^TTT ;
Who can certify a business as
disadvantaged?
A, Federal agencies such as the SBAand DOT
B. State, local, and Tribal governments
C. Independent and private entities such as TERO
D. The Environmental Protection Agency
E. All of the above
DBEs are companies owned or controlled by
at least socially and economically
disadvantaged individuals.
A, 11%
B. 25%
C. 51%
D. 75%
E. All of the above
Olx
Learner Notes
Please note that the terms "DBE" and
"MBE/WBE" are used interchangeably
throughout the manual. However, it is
important to recognize two areas where
there are distinctions between the two
terms.
1. For the purposes of reporting
MBE/WBE utilization on EPA Form
5700-52A, ONLY certified
MBE/WBEs can be counted towards
your utilization in the areas where the
form requests that information. While
Small Business Enterprises (SBEs);
Small Businesses in a Rural Areas
(SBRAs); Labor Surplus Area Firms
(LSAFs); and Historically
Underutilized Business (HUB) Zone
Small Business Concerns, are DBEs,
they MUST NOT be included when
reporting your accomplishments under
the program on EPA Form 5700-52A.
2. It is also important to recognize the
distinction between "DBE" and
"MBE/WBE" when calculating your
fair share objectives. Fair share
objectives are ONLY negotiated for
MBE/WBEs...NOT for the other
categories of DBEs stated above.
DBE Reporting
1 All recipients, including Tribal Nations and U.S.
Territories, must report DBE procurements.
- Check the "terms and conditions" of your award for
the reporting schedule.
Fill out EPA Form 57OO-52A.
" Mail it to your regional DBE Coordinator.
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
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Page 14 of 41
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Module 9: Disadvantaged Business Enterprises (DBEs)
Disadvantaged Business Enterprise
(DBE) Reporting
What is DBE reporting?
All recipients, including Tribal Nations and U.S.
Territories, must report DBE (minority business
enterprise (MBE) and women business enterprise
(WBE)) accomplishments on EPA Form 5700-
52A. Fill out the form and mail to your regional
DBE Coordinator.
EPA Form 5700-52A may be obtained from the
EPA Office of Small Business Programs at
http://www.epa. gov/osbp/pdfs/5700 52a.pdf. A copy is
also provided in the Appendix.
Reporting times may vary by type of assistance.
Most Tribal Nations report on an annual or semi-
annual basis (i.e., twice per year), even those who
were previously required to report quarterly.
// time is short,
EPA can now accept facsimile (fax) and emailed
portable document format (PDF) copies of forms.
Print, complete, sign and date the form; then fax
or email it to the appropriate EPA contact
by the due date as stated in the "terms and
conditions" of the award.
Do send a paper copy too.
The following recipients report on an annual basis:
Recipients of Continuing Environmental
Program Grants under 40 CFR Part 35,
Subpart A;
Recipients under 40 CFR Part 35, Subpart
B;
General Assistance Program (GAP) grants
for tribal governments and intertribal
consortia; and
Institutions of higher education, hospitals
and other non-profit organizations
receiving financial assistance agreements
under 40 CFR Part 30
Please check the "terms and conditions" of your
award or contact your EPA regional office for
details.
EPA Form 5700-52A
"MBE/WBE Utilization Under Federal Grants, Cooperative
Agreements and Interagency Agreements"
A cop/ of EPA Form 5700-52Ais provided inthe Appendix.
An example of a completed EPA Form 5700-52A
is provided on the next few pages.
Purpose of DBE Reporting
The purpose of DBE reporting is to
monitor the grant recipient's:
° Accomplishments in utilizing DBEs
r Adherence to the "good faith efforts"
< Progress in achieving DBF, "lair share"
< ibjectives
What is the purpose of DBE reporting?
The purpose of DBE reporting is to monitor the
grant recipient's:
Accomplishments in utilizing DBEs
Adherence to the good faith efforts (i.e..
outreach to MBEs, WBEs, and other
DBEs)
Progress in achieving DBE fair share
objectives
For example, "terms and conditions" might
specify:
The Tribal Nation agrees to complete and
submit EPA Form 5700-52A, "MBE/WBE
Utilization Under Federal Grants,
Cooperative Agreements and Interagency
Agreements" beginning with the Federal
fiscal year reporting period we receive the
award, and continuing until the project is
completed. Only procurements with
certified DBEs are counted toward DBE
accomplishments.
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
Last Updated April 2013
Page 15 of 41
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Module 9: Disadvantaged Business Enterprises (DBEs)
The reports must be submitted
semiannuallyfor the periods ending
March 31st and September 30th for:
Recipients of financial assistance
agreements that capitalize revolving
loan programs (CWSRF, DWSRF,
Brownfields); and
All other recipients not identified as
annual reporters (40 CFR Part 30 and
40 CFR Part 33, Sub part A and
Subpart B recipients are annual
reporters).
The reports are due within 30 days of the
end of the semiannual reporting periods
(April 30th and October 30th). Reports
should be sent to (enter appropriate
regional information). Final DBE reports
must be submitted within 90 days after
the project period of the grant ends. The
grant cannot be officially closed without
all DBE reports.
What are the grant recipient's responsibilities for
DBE reporting?
It is the responsibility of the EPA grant recipient to
complete and submit the DBE report to EPA.
The prime contractors, sub-recipients, and loan
recipients provide data to the Tribal Nation for
procurement expenditures and objectives under the
EPA assistance agreement for each reporting
period.
The Tribal Nation completes and submits EPA
Form 5700-52A:
For each reporting period
At a frequency specified in the grant
agreement
To the appropriate EPA office and
personnel
As identified in their financial assistance
agreement
The current form can be downloaded from
http://www.epa.gov/osbp/grants.htm. A copy is also
provided in the Appendix of this manual.
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
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Module 9: Disadvantaged Business Enterprises (DBEs)
OMB CONTROL NO: 2090-0030
APPROVED: 05/01/2008
APPROVAL EXPI RES: 012/22/2013
U.S. ENVIRONMENTAL PROTECTION AGENCY
MBE/WBE UTILIZATION UNDER FEDERAL GRANTS,
AND COOPERATIVE AGREEMENTS
PART 1. (Reports are required even if no procurements are made during the reporting period.)
1A. FEDERAL FISCAL 1B. REPORTING PERIOD (Check ALL appropriate boxes)
YEAR nis(Oct-Dec) Q 2 (Jan-Mar) Q3rd (Apr-Jun) Q 4th (Jul-Sep)
2Q-\i ^Semi-Annual(Oct-Mar) | | Semi-Annual (Apr-Sep)
)T] Annual
^JCheck if this is the last report for the project (Project completed).
1C. REVISION OF A PRIOR REPORT? Y or©
Year: Quarter:
2A. EPA FINANCIAL ASSISTANCE OFFICE ADDRESS
( ATTN: DBE Coordinator)
Office for Civil Rights and Environmental Justice
CEJ-987 4343 Main St.
Somewhere, ST 98765
555.987.6543
2B. EPA DBE 2C. PHONE:
COORDINATOR 555.987.6543
Name: Linda Forest Fax' 555 987 6565
E-mail: lforest@epa.gov
4A. FINANCIAL ASSISTANCE AGREEMENT ID NUMBER
(SRF State Recipients, refer to Instructions for Completion of
blocks4A, 5A and 5C.)
US-12345678-0
BRIEFLY DESCRIBE THE REVISIONS YOU ARE MAKING:
NA (not applicable)
3A. RECIPIENT NAME AND ADDRESS
Tribe
1234 Rural Route 2
Somewhere, ST 12345
3B. RECIPIENT REPORTING 3C. PHONE:
CONTACT: 555.666.9898
Name: Jane Doe, Project Manager fax' 5556669899
E-mail: jdoe@tribe.org
4B. FEDERAL FINANCIAL ASSISTANCE PROGRAM TITLE
or CFDA NUMBER:
66.418 Construction Grants for Waste Water Treatment Works
5A. TOTAL ASSISTANCE AGREEMENT 5B. If NO procurement and NO accomplishments were made this
AMOUNT (SRF State Recipients, referto Instructions reporting period, check, and skip to Block No. 7. (Procurements are all
for Completion of blocks 4A, 5A and 5C.) expenditures through contract, order, purchase, lease, or barter of
EPA Share: $2,000,000 supplies, equipment, construction, or services needed to complete Federal
Redolent Share' '$10 220 429 assistance programs. Accomplishments, in this context, are procurements
made with MBEs and/or WBEs.
sc. Total Procurement and MBE/WBE Accom
(Only include amount r
Were sub-awards issued under this assistance agreement? N
Were contracts issued under this assistance agreement? Yes
Total Procurement Amount $19.843 (Include total dollar vak
Actual MBE/WBE Procurement Accomplished:
(Include total dollar values awarded by recipient, sub-recipier
Construction Equipment
MBE: $13,510
plishments This Reporting Period
lot reported in any prior reporting period)
'es X No
, X No
es awarded by recipient, sub-recipients, and SRF loan recipients.)
ts, SRF loan recipients, and Prime Contractors.)
Services Supplies Total
$13,510
WBE: $0
6. COMMENTS: (If no MBE/WBE procurements were accomplished during the reporting period, please explain what steps
you are taking to achieve the MBE/WBE Program requirements specified in the terms and conditions of the Assistance
Agreement.) NA
7. NAME OF RECIPIENT'S AUTHORIZED REPRESENTATIVE TITLE
James Stone President, Tribal Leader 's Council
8. SIGNATURE OF RECIPIENT'S AUTHORIZED REPRESENTATIVE DATE
James Stone 11/30/2011
Figure 1: EPA Form 5700-52A page 1
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
Last Updated April 2013
Page 17 of 41
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Module 9: Disadvantaged Business Enterprises (DBEs)
MBE/WBE PROCUREMENTS MADE DURING REPORTING PERIOD
EPA Financial Assistance Agreement Number: L/S-72345678-0
1. Procurement Made By
Recipient
Tribe
Sub-
Recipient
and/or SRF
Loan
Recipient
Prime
2. Business Enterprise
Minority
X
Women
3. $ Value of
Procurement
$13,510
4. Date of
Award
(MM/DD/YY)
08/23/2011
5. Type of Product
or Services (Enter
Code)
1
6. Name/Address/Phone Number
of MBE/WBE Contractor or
Vendor
Estes Construction
P.O. Box 9876
Simpleton, ST 98765
555.777.7243
Estes. construction@tbc. com
Type of product or service codes:
1 = Construction 2 = Supplies 3 = Services 4 = Equipment
Note: Refer to Terms and conditions of your Assistance Agreement to determine the frequency of reporting. Recipients are required to submit MBE/WBE reports to EPA
beginning with the Federal fiscal year quarter the recipients receive the award, continuing until the project is completed.
Figure 2: EPA Form 5700-52A page 2
Last Updated April 2013
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
Page 18 of 41
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Module 9: Disadvantaged Business Enterprises (DBEs)
Instructions:
A. General Instructions:
MBE/WBE utilization is based on 40 CFR Part 33. EPA Form 5700-52A must be completed by
recipients of Federal grants, cooperative agreements, or other Federal financial assistance which
involve procurement of supplies, equipment, construction or services to accomplish Federal
assistance programs.
Recipients are required to report 30 days after the end of each federal fiscal quarter, semiannually, or
annually, per the terms and conditions of the financial assistance agreement.
Agreements
awarded
prior to May
27, 2008
Agreements
awarded on
or after May
27, 2008
Quarterly
Reporting
Due Date
January 30,
April 30,
July 30,
October 30
N/A
Semiannual
Reporting
Due Date
N/A
April 30,
October 30
Annual
Reporting
Due Date
October
30
October
30
MBE/WBE program requirements, including reporting, are material terms and conditions of the
financial assistance agreement.
B. Definitions:
Procurement is the acquisition through contract, order, purchase, lease or barter of supplies,
equipment, construction or services needed to accomplish Federal assistance programs.
A contract is a written agreement between an EPA recipient and another party (also considered
"prime contracts") and any lower tier agreement (also considered "subcontracts") for equipment,
services, supplies, or construction necessary to complete the project. This definition excludes written
agreements with another public agency. This definition includes personal and professional services,
agreements with consultants, and purchase orders.
A minority business enterprise (MBE) is a business concern that is (1) at least 51 percent owned
by one or more minority individuals, or, in the case of a publicly owned business, at least 51 percent
of the stock is owned by one or more minority individuals; and (2) whose daily business operations
are managed and directed by one or more of the minority owners. In order to qualify and participate
as an MBE prime or subcontractor for EPA recipients under EPA's DBE Program, an entity must be
properly certified as required by 40 CFR Part 33, Subpart B.
U.S. citizenship is required. Recipients shall presume that minority individuals include Black
Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, or other groups whose
members are found to be disadvantaged by the Small Business Act or by the Secretary of Commerce
under section 5 of Executive order 11625. The reporting contact at EPA can provide additional
information.
A woman business enterprise (WBE) is a business concern that is, (1) at least 51 percent owned
by one or more women, or, in the case of a publicly owned business, at least 51 percent of the stock
is owned by one or more women and (2) whose daily business operations are managed and directed
by one or more of the women owners. In order to qualify and participate as a WBE prime or
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
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Module 9: Disadvantaged Business Enterprises (DBEs)
subcontractor for EPA recipients under EPA's DBE Program, an entity must be properly certified as
required by 40 CFR Part 33, Subpart B.
Business firms which are 51 percent owned by minorities or women, but are in fact managed and
operated by non-minority individuals do not qualify for meeting MBE/WBE procurement goals. U.S.
Citizenship is required.
Good Faith Efforts
A recipient is required to make the following good faith efforts whenever procuring construction,
equipment, services, and supplies under an EPA financial assistance agreement. These good faith
efforts for utilizing MBEs and WBEs must be documented. Such documentation is subject to EPA
review upon request:
1. Include of MBEs/WBEs on solicitation lists.
2. Assure that MBEs/WBEs are solicited once they are identified.
3. Divide total requirements into smaller tasks to permit maximum MBE/WBE participation,
where feasible.
4. Establish delivery schedules which will encourage MBE/WBE participation, where feasible.
5. Encourage use of the services of the U.S. Department of Commerce's Minority Business
Development Agency (MBDA) and the U.S. Small Business Administration to identify
MBEs/WBEs.
6. Require that each party to a subgrant, subagreement, or contract award take the good faith
efforts outlined here.
C. Instructions for Part I:
1 a. Specify Federal fiscal year this report covers. The Federal fiscal year runs from October 1st
through September 30th (e.g. November 29, 2010 falls within Federal fiscal year 2011)
1b. Check applicable reporting box, quarterly, semiannually, or annually. Also indicate if this is
the last report for the project.
1c. Indicate if this is a revision to a previous year, half-year, or quarter, and provide a brief
description of the revision you are making.
2a-c. Please refer to your financial assistance agreement for the mailing address of the EPA
financial assistance office for your agreement.
The "EPA DBE Reporting Contact" is the DBE Coordinator for the EPA Region from which
your financial assistance agreement was originated. For a list of DBE Coordinators please
refer to the EPA OSBP website at www.epa.gov/osbp. Click on "Regional Contacts" for the
name of your coordinator.
3a-c. Identify the agency, state authority, university or other organization which is the recipient of
the Federal financial assistance and the person to contact concerning this report.
4a. Provide the Assistance Agreement number assigned by EPA. A separate report must be
submitted for each Assistance Agreement.
*ForSRF recipients: In box4a list numbers for ALL OPEN Assistance Agreements being
reported on this form. Please note that although the New DBE Rule (which took effect May
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
Last Updated April 2013 Page 20 of 41
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Module 9: Disadvantaged Business Enterprises (DBEs)
27, 2008) revised the reporting frequency requirements from quarterly to semiannually, that
change only applies to agreements awarded AFTER the New DBE Rule took effect.
Therefore, SRF recipients may either continue to report activity for all Agreements on one
form on a quarterly basis until the last award that was made prior to the New DBE Rule has
been closed out; OR, the recipient may split the submission of SRF reports into quarterly
reports for Agreements awarded prior the New DBE Rule, and semiannually for the awards
made after the New DBE Rule.
4b. Refer back to Assistance Agreement document for this information.
5a. Provide the total amount of the Assistance Agreement which includes Federal funds plus
recipient matching funds and funds from other sources.
*For SRF recipients only: SRF recipients will not enter an amount in 5a. Please leave 5a
blank.
5b. Self-explanatory.
5c. Provide the total dollar amount of ALL procurements awarded this reporting period by the
recipient, sub-recipients, and SRF loan recipients, including MBE/WBE expenditures. For
example: Actual dollars for procurement from the procuring office; actual contracts let from
the contracts office; actual goods, services, supplies, etc., from other sources including the
central purchasing/ procurement centers).
*NOTE: To prevent double counting on line 5C, if any amount on 5E is for a subcontract and
the prime contract has already been included on Line 5C in a prior reporting period, then
report the amount going to MBE or WBE subcontractor on line 5E, but exclude the amount
from Line 5C. To include the amount on 5C again would result in double counting because
the prime contract, which includes the subcontract, would have already been reported.
5d. State whether or not sub-awards and/or subcontracts have been issued under the assistance
agreement by indicating "yes" or "no".
5e. Where requested, also provide the total dollar amount of all MBE/WBE procurement awarded
during this reporting period by the recipient, sub-recipients, SRF loan recipients, and prime
contractors in the categories of construction, equipment, services and supplies. These
amounts include Federal funds plus recipient matching funds and funds from other sources.
*For SRF recipients only: In 5c please enter the total procurement amount for the quarter,
or semiannual period, under all of your SRF Assistance Agreements. The figure reported in
this section is not directly tied to an individual Assistance Agreement identification number.
(SRF state recipients report state procurements in this section)
6. If there were no MBE/WBE accomplishments this reporting period, please briefly explain what
specific steps you are taking to achieve the MBE/WBE requirements specified in the terms
and conditions of the Assistance Agreement.
7. Name and title of official administrator or designated reporting official.
8. Signature, month, day, and year report submitted.
D. Instructions for Part II:
For each MBE/WBE procurement made under this assistance agreement during the reporting period,
provide the following information:
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
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Module 9: Disadvantaged Business Enterprises (DBEs)
1. Check whether this procurement was made by the recipient, sub-recipient/SRF loan recipient,
or the prime contractor.
2. Check either the MBE or WBE column. If a firm is both an MBE and WBE, the recipient may
choose to count the entire procurement towards EITHER its MBE or WBE accomplishments.
The recipient may also divide the total amount of the procurement (using any ratio it so
chooses) and count those divided amounts toward its MBE and WBE accomplishments. If
the recipient chooses to divide the procurement amount and count portions toward its MBE
and WBE accomplishments, please state the appropriate amounts under the MBE and WBE
columns on the form. The combined MBE and WBE amounts for that MBE/WBE
contractor must not exceed the "Value of the Procurement" reported in column #3
3. Dollar value of procurement.
4. Date of procurement, shown as month, day, year. Date of procurement is defined as the date
the contract or procurement was awarded, not the date the contractor received payment
under the awarded contract or procurement, unless payment occurred on the date of award.
(Where direct purchasing is the procurement method, the date of procurement is the
date the purchase was made)
5. Using codes at the bottom of the form, identify type of product or service acquired through
this procurement (e.g., enter 1 if construction, 2 if supplies, etc).
6. Name, address, and telephone number of MBE/WBE firm.
"This data is requested to comply with provisions mandated by: statute or regulations (40 CFR Part
30, 31, and 33); OMB Circulars; or added by EPA to ensure sound and effective assistance
management. Accurate, complete data are required to obtain funding, while no pledge of
confidentiality is provided.
The public reporting and recording burden for this collection of information is estimated to average I
hour per response annually. Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclosure or provide information to or for a Federal agency.
This includes the time needed to review instructions; develop, acquire, install, and utilize technology
and systems for the purposes of collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information; adjust the existing ways to comply
with any previously applicable instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information unless it displays a currently valid
OMB control number.
Send comments on the Agency's need for this information, the accuracy of the provided burden
estimates, and any suggested methods for minimizing respondent burden, including through the use
of automated collection techniques to the Director, OPPE Regulatory Information Division, U.S.
Environmental Protection Agency (2136), 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460.
Include the OMB Control number in any correspondence. Do not send the completed form to this
address.
Figure 42: EPA Form 5700-52A page 5
EPA Tribal, U.S. Territories and Insular Areas Administrative and Financial Guidance for Assistance Agreements
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Module 9: Disadvantaged Business Enterprises (DBEs)
DBE Reporting Requirements
:-. ..
DBE procurements must be
reported by category and
provider.
= Category:
Construction
Supplies
Equipment
Services
= Provider:
Minority-owned Business
Enterprise
Womeii-o\vned
Business Enterprise
What do we report?
Collect and retain document data on DBEs and
total procurement expenditures made for the grant
project up to the "Total Assistance Agreement
Amount" (i.e., the project's total budget).
Report the "total project amount", including
expenses:
Funded by EPA
Funded by other sources
Made to all DBE businesses
Made to non-DBE businesses
Report procurement expenditures from all sources
[i.e., the EPA grants recipient, sub-recipients, loan
recipients (and the prime contractors of all three
entities)].
DBE procurements must be reported by:
Category (construction, supplies,
equipment, services), and
Provider (Minority-owned Business
Enterprise or Women-owned Business
Enterprise).
DBE Goals
Goals are targets not quotas.
= All expenses must be reported, no matter who
pays for them.
= A dollar amount of zero is acceptable when
there was no DBE procurement.
What if there were no purchases?
Award projects where there were no DBEs utilized,
or no procurement expenditures of any kind were
made during the reporting period, must still submit
"negative reports". The information is required
because the purpose of the reporting form is two-
fold:
It provides data on total expenditures
made in the four procurement
categories.
It allows EPA to monitor the
utilization of DBEs under its grants.
Why is DBE reporting required?
DBE reporting is required because EPA needs to
track the use of DBEs. Data tells EPA if the
program is working and whether DBEs are
receiving the expected opportunities. EPA
recognizes that there are circumstances in which a
DBE might be awarded little or no procurement
dollars during a given reporting period. What is
important is that the grant recipients, sub-
recipients, loan recipients, and prime contractors of
these entities conduct and document outreach to
DBEs.
Participation Counts
Report Each EPA Project Separately
DBEs must be certified in order to be counted
toward a recipient's accomplishments.
c Ask your DBE Coordinator for the latest
information on DBE certification.
Wetlands
Restoration
I Air Quality Control Brownfields
Reclamation
EPA Form 5700-5^ EPA Form 57OO-52A EPA Form 5700-5^
How do we report?
Report dollar amounts for a single project only.
Each award project requires a separate DBE report.
What must be considered in counting DBE
participation ?
DBEs must be officially certified, in order
to claim/report them on EPA Form 5700-
52A.
DBEs may not act as brokers or passive
conduits of funds.
For example, a DBE trucker must serve a
"commercially-useful" function.
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Module 9: Disadvantaged Business Enterprises (DBEs)
The amount counted towards a DBE
prime contractor may not exceed 100
percent of contract value.
To be claimed 100 percent DBE, a prime
contractor who is a DBE may not sub-
award more than 49 percent of its contract
value to non-DBEs.
A copy of the DBE Certification Fact Sheet is
provided in the Appendix, however, this
information is currently under revision. Ask your
DBE Regional Coordinator for the latest
information on DBE certification.
How is DBE reporting under revolving loan
programs different?
EPA financial assistance recipients that capitalize
revolving loan programs need only report "total
procurement dollars" in the amount of loans equal
or up to the capitalization grant amount. Entities
receiving identified loans must submit their
MBE/WBE participation reports/data to the EPA
grant recipient (rather than to EPA). EPA financial
assistance recipients that capitalize revolving loan
programs must ensure that they receive
procurement reports from revolving loan recipients
in time to meet EPA's DBE reporting deadlines.
Due Dates
File EPA Form 57OO-52A:
<= During the award period
By the goth of April
By the 30th of October
How often are DBE reports due?
The required reporting frequency is listed in the
"terms and conditions" of the award document or
EPA's annual letter containing grant terms and
conditions. Submission dates are listed in
paragraph #2 of the instructions accompanying
EPA Form 5700-52A. Those grantees who
previously reported quarterly now report semi-
annually (by the 30th of April and October). All
other grantees may continue to report annually.
Annual Reporters:
Recipients of Continuing Environmental
Program Grants under 40 CFR Part 35,
Subpart A
Recipients under 40 CFR Part 35, Subpart
B
General Assistance Program (GAP) grants
for tribal governments and intertribal
consortia
Institutions of higher education, hospitals
and other non-profit organizations
receiving financial assistance agreements
under 40 CFR Part 30
Annual reporters must submit their
completed EPA Form 5700-52A to EPA
within 30 days of the end of the annual
reporting period (October 30th)
Semi-Annual Reporters:
Recipients of financial assistance
agreements that capitalize revolving loan
funds; and
All other recipients not specified as
"annual reporters".
Semiannual reporters must submit their
completed EPA Form 5700-52A to EPA
within 30 days of the end of the
semiannual reporting period (April 30th
and October 30th).
Reports are required from project start to
completion as stated in the assistance agreement.
Reporting begins at the start of the project period,
not from the point when the first procurement is
made.
There is no "final" report at the end of the fiscal
year. When you file the "final" or last report for the
project, check the box on the form that states this is
the last report submitted. Submit the last report as
soon as possible, no later than 90 days after the
project has expired.
DBE reports (completed EPA Form 5700-52A) are
due
by the 30th of April and October during the
award period and a final form is due at closeout.
Financial assistance awards cannot be closed
without the submission of all required reports.
EPA requires a separate report for each
individual grant applicable per reporting
period.
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Module 9: Disadvantaged Business Enterprises (DBEs)
You must submit a separate report for each
federal grant. The authorized certifying official
must sign the EPA Form 5700-52A.
EPA Form 5700-52A and a reporting check list are
provided in the Appendix.
DBE Regional Coordinator
EPA Form 5700-52.4 reports must be:
Signed and dated,
Faxed, emailed, or mailed, and
Sent to the DBE Regional Coordinator.
.' H '','! '-.' M|_'^!> LM .". !! -i'iJl i
REPWSSNTATrvE
ft SIGNATURE OF RECIPIENTS
AUTMOWHD REPRESENT ATfVC
Tine
DATE
Where do we send the DBE report?
Submit the EPA Form 5700-52A to the person
identified in the "terms and conditions" of the
grant agreement. This person will usually be the
regional EPA Project Officer or DBE Coordinator.
The award cannot be closed out until several key
documents are filed, including the final DBE
report. Do not send the form to headquarters if you
are under the jurisdiction of a regional office.
Can we FAX or email the DBE report?
EPA grant recipients must submit their completed
DBE reports to the EPA regional DBE
Coordinator. Be sure to have your authorized
certifying official sign and date, then fax, mail, or
email the form. Portable Document Format (PDF)
versions are now accepted as legal documents by
the federal government. Many scanners can create
PDF versions of documents.
What if there are problems with a DBE report?
If for some reason your report is overdue, contact
your regional DBE coordinator.
If you realize later that a previously submitted
report contained inaccurate, incomplete, or
incorrect data, submit a "revised" report. For
example, on EPA Form 5700-52A:
In Block 1C circle the word "Yes" and
enter the fiscal year for which the report is
being corrected.
Explain the reason for the revised report
in the block next to Block 1C.
For further assistance in setting DBE goals and
reporting accomplishments, refer to the DBE
Program Manual, available at
http://www.epa.gov/osbp/dbe team.htm. If you are still
unsure about how to complete the report, contact
the person to whom you mailed the report.
Learner Notes
While each region may have a DBE
Regional Coordinator, each region also
uses different procedures for processing
grant forms. Award recipients should send
reports to and correspond with the person
named in the "terms and conditions" of
your award document. If for any reason
the "terms and conditions" do not specify
a person, the report should be sent to the
DBE Regional Coordinator or you may
ask their Grants Specialist to identify to
whom the report should be mailed.
Dollar amounts reported on the DBE
reporting form include:
A. All non-grant procurements for the tribal
nation
B. All procurements for all EPA grant projects
combined
C. Justprocurements for supplies and services
D. AH DBE and Non-DBE procurements for a
single project
E. None of the above
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Module 9: Disadvantaged Business Enterprises (DBEs)
Learner Notes
Federal forms can be confusing especially
for first time grant recipients. This is a
good time to practice filling out the forms,
when there are others around to answer
questions. Practice filling in the EPA Form
5700-52A in Activity 9.c (found online at
www.petetribal. org).
Contracts, purchases, and sole source
purchasing are all subsets of the
overarching term of procurement.
Contracts involve signing of
paperwork and incremental payments,
supervision, and evaluation of work.
Purchases are straight-forward
payment for goods. You pay for it;
you own it.
Sole source purchasing means you
agree in advance to purchase multiple
items from a single business. This
practice is not encouraged unless the
sole source supplier is a DBE and/or
the only business providing such
service within your market region.
virr^ ,«.,
A grant recipient needs to submit a DBE
reporting form even when business is not
conducted with any DBEs,
A. True
B. False
C. It depends on whether procurement dollars
were awarded to DBEs in the previous fiscal
year.
D. It depends on whether procurement dollars
were awarded to DBEs under other
EPA awards.
E. None of the above
The DBE reporting form is signed by the:
A. Contractor
B. Sub-recipient
C. Loan recipient
D. EPA grantee
E. All of the above
Contract Administration
Require the Prime Contractor to employ the Six
Good Faith Efforts.
Documental! contractwork.
Employ theSix Good Faith Efforts.
Pay subcontractor no morethan 30 days after
receipt of payment from recipient.
Notify recipient in writingbeforeterminatinga
subcontractor.
Contract Administration
What are the contract administration
requirements?
Provisions designed to prevent unfair practices that
adversely affect DBEs include:
A recipient must require its prime
contractor to pay its subcontractor for
satisfactory performance no more than 30
days from the prime contractor's receipt
of payment from the recipient.
A recipient must be notified in writing by
its prime contractor prior to any
termination of a DBE subcontractor for
convenience by the prime contractor.
If a DBE subcontractor fails to complete
work under the subcontract for any
reason, the recipient must require the
prime contractor to employ the six good
faith efforts if soliciting a replacement
subcontractor.
A recipient must require its prime
contractor to employ the six good faith
efforts even if the prime contractor has
achieved its fair share objectives.
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Module 9: Disadvantaged Business Enterprises (DBEs)
Contract Administration Forms
EPA ^ecipenc rsruirBd to have prime
6100-3 Subcontractors
EPA
Form
6100-4
Recipient*
RecipienG as
Prime Contractors partofabidor
proposal pad-a
What forms are associated with the contract
administration provisions?
EPA Form 5700-52A - MBE/WBE Utilization
Under Federal Grants, Cooperative Agreements,
and Interagency Agreements must be filed by all
grant recipients. It is required even if no
procurements are made during the reporting period.
EPA Form 6100-2 - DBE Program Subcontractor
Participation Form gives a DBE subcontractor the
opportunity to describe the work the DBE
subcontractor received from the prime contractor,
how much the DBE subcontractor was paid and
any other concerns the DBE subcontractor might
have.
EPA Form 6100-3 - DBE Program Subcontractor
Performance Form captures an intended
subcontractor's description of work to be
performed for the prime contractor and the price of
the work submitted to the prime.
EPA Form 6100-4 - DBE Program Subcontractor
Utilization Form captures the prime's intended use
of an identified DBE subcontractor, and the
estimated dollar amount of the subcontract.
These forms are also available on the DBE website,
http://www.epa.gov/osbp/grants.htm.
What administration requirements do prime
contractors and sub-recipients need to follow?
Contract administration requirements to support
DBE contractors include:
A 30-day payment provision for subs
Written notification of DBE terminations
Employment of the Six Good Faith
Efforts after termination of a DBE (while
soliciting a replacement)
Employing the Good Faith Efforts even
after fair share objectives have been met
Completion of three forms to prevent
"bait and switch" tactics:
EPA Form 6100-2
EPA Form 6100-3
EPA Form 6100-4
These forms are filled out by the recipient's prime
contractors and subcontractors, not the grant
recipient. They are available online at
http://www.epa.gov/osbp/grants.htm. and provided in
the Appendix.
DBE Requirements
Six Good Faith Efforts
Reporting
Bidders List
Negotiation of Fair Share Objectives
Fair Share Goals and Objectives
Fair share goals and objectives are procurement
targets:
G Set by a grant recipient to actively seek out and
use DBEs whenever possible
<= Based on trie capacity and availability7 of qualified,
certified DBEs located in the grant recipient's
geographical region
Fair Share Objectives
What are fair share objectives?
Fair share objectives are goals set by a grant
recipient to actively seek out and use DBEs
whenever possible. A fair share objective is a
procurement goal based on the capacity and
availability of qualified, certified DBEs in the grant
recipient's geographical area. Capacity refers to the
DBE's ability to provide the amount of goods or
services necessary to complete the project.
Availability refers to the DBE's proximity to the
job site. Will distance reduce the DBE's ability to
do the job assigned? Will it cost more to use a
certain DBE because they do not have enough
employees, cannot complete the job before the
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Module 9: Disadvantaged Business Enterprises (DBEs)
deadline, or do not provide services in your
geographical area?
Examples of fair share objectives are included in
the Appendix to this manual.
Capitalizing Revolving Loan Funds
Apply negotiated fair share objectives
° Use a substantially similar relevant
geographic market
OR
Negotiate separate fair share objectives
with its identified loan recipients
= Document those negotiations
Which requirements apply to loan recipients?
If the Tribal Nation is a recipient of an EPA
financial assistance agreement to capitalize
revolving loan funds, the recipient agrees to:
Apply its own fair share objectives
negotiated with EPA to identified loans
using a substantially similar relevant
geographic market, or
Negotiate separate fair share objectives
with its identified loan recipients. If the
Tribal Nation chooses to negotiate
separate fair share objectives, the Nation
must document those negotiations.
If procurements will occur over more than one
year, the recipient may choose to apply the fair
share objective in place either for the year in which
the identified loan is awarded or for the year in
which the procurement action occurs.
Procurements made in different fiscal years might
be treated differently. The recipient must specify
this choice in the financial assistance agreement, or
reference 40 CFR, Part 33, Subpart D in their
manual of grant management policies.
Fair Share Policy
Applies to all procurement expenses
rr.
Equipment
What is covered under the "Fair Share Policy"?
The "fair share policy" now applies to all
procurement efforts. Procurement includes all
expenses when a grant recipient pays for goods and
services with their grant dollars. Procurement
expenses are all purchases paid for with EPA
funds, including:
Contracts
Subcontracts
Loans
Subawards
Fair Share Objectives Process
<; Exempt
P Adopt
C5 Negotiate
M Availability
§ Analysis
,_, Disparity Study
Q Comparison
3 Chart
Pi Constructior
PL
<; Equipment
Suppfcs
Fair share objectives must be:
1. Negotiated, adopted, or exempted
2. Determined
3. Applied to all procurement categories
(i.e., construction, equipment, services,
and supplies)
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Module 9: Disadvantaged Business Enterprises (DBEs)
Fair Share Objectives
Afair share objective is not a quota.
A recipient cannot be penalized for failure to
meet its fair share objectives.
Procurement Category
Construction
Supplies
Services
Goods/Equipment
mac
7.00%
3.00%
5.0OW
6.00%
WBE%
2.OO%
10.00%
3.00%
2.00%
_J
Exemptions to Fair Share Negotiations
An EPA financial assistance award in the amount
$250,000 or less, or more than one award with a
combined total of 8250,000 or less in any fiscal year
The following loans total 8250,000 or less:
= Clean Water State Revolving Fund
= Drinking Water State Revolving Fund
= Brownfields Cleanup Revolving Loan Fund
Tribal Recipients of Performance Partnership
Grants (PPG) eligible
Technical Assistance Grants
Negotiation
Who negotiates fair share objectives?
Unless specifically exempted, all recipients must
negotiate fair share objectives with EPA. The fair
share policy applies to all EPA financial assistance
programs. There are several exemptions that help
alleviate this burden on most Tribes. (DBE
exemption information is provided on the next few
pages of this Manual.)
The goal that is agreed upon establishes a
percentage of procurement dollars that the recipient
will try to expend on the four different
procurement categories based on the availability
analysis or other information used to establish
those goals for procurement expenditures for
MBE/WBEs.
Tribal and Insular Area recipients are required to
adhere to the full requirements of the fair share
objectives, which can be found in 40 CFR Part 33,
Subpart D., except if they have a performance
partnership grant (PPG) or received less than
$250,000 in financial assistance from EPA.
In the diagram on Slide 63, the percentages are
examples of actual DBE Fair Share Objectives
(targets). The recipient sets target percentages for
each procurement category. In this instance, the
Tribal Nation has determined that the fair share of
construction jobs in their area should go to 7%
minority business enterprises and 2% women-
owned business enterprises, supplies at 3% and
10%, services at 5% and 3%, and goods or
equipment at 6% and 2% respectively.
Is there anyone who does NOT have to negotiate
fair share objectives?
Exemption depends on the funding program.
The source of ftrnding determines whether the
organization is exempt or not.
General. A recipient of an EPA financial
assistance agreement in the amount of
$250,000 or less for any single assistance
agreement, or of more than one financial
assistance agreement with a combined
total of $250,000 or less in any one fiscal
year, is not required to apply the fair share
objective requirements of this subpart.
(b) Clean Water State Revolving Fund
(CWSRF) Program, Drinking Water State
Revolving Fund (DWSRF) Program, and
Brownfields Cleanup Revolving Loan
Fund (BCRLF) Program Identified Loan
Recipients. A recipient under the CWSRF,
DWSRF, or BCRLF Program is not
required to apply the fair share objective
requirements of this subpart to an entity
receiving an identified loan in an amount
of $250,000 or less or to an entity
receiving more than one identified loan
with a combined total of $250,000 or less
in any one fiscal year.
Tribal and Intertribal Consortia
recipients of program grants which can be
included in Performance Partnership
Grants (PPGs) under 40 CFR Part 35,
Subpart B. Tribal and Intertribal consortia
recipients of PPG eligible grants are not
required to apply the fair share objective
requirements of this subpart to those
grants.*
Technical Assistance Grant (TAG)
Program Recipients. A recipient of a TAG
is not required to apply the fair share
objective requirements of this subpart to
that grant.
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*Only PPG eligible grants that Tribal Nations
actually receive are exempt from negotiating fair
share objectives. Your Grants Specialist can tell
you if your award is PPG eligible. The fact that a
Tribal Nation is "eligible" to roll grants into a PPG
does not make them exempt from negotiations.
Sample Determination of Exemption 2012
550,000 WaterPoIlutionConta>IGrant(PPGEligble)
$400,000 WedanS5De'H*>jirentGiait(PPGEligble)
SIOCLOOO Re5eairharjdDe\elo[inentGiant(Xon-PPGEligble) s
515,000 GenerdAssistanceProgiam(GAP) giant
$ 100,000 does not reach the 5=50,000 threshold,
so Tribe AdoeiXOTneed to negjti^Bf airshare objectires.
For example, Tribe A receives four grants from
EPA in 2012. When applying the $250K
exemption to determine whether or not a Tribe will
have to negotiate fair share objectives, we would
first eliminate the first and second grants because
they are PPG eligible, and therefore, not subject to
negotiations. We would then eliminate the fourth
grant because it is a GAP grant, which are also not
subject to negotiations. The third grant is the only
grant that could trigger the negotiations. However,
the third grant is only for $100,000. Therefore the
$250,000 threshold is not reached. Tribe A would
not have to negotiate fair share objectives in 2012.
Exemptions will be stated in the "terms and
conditions" of the award document. For example:
The award amount of this assistance
agreement is $250,000 or less.
Therefore, the recipient of this assistance
agreement is exempt from the fair share
objective requirements of 40 CFR, Part
33, Subpart D, and is not required to
negotiate fair share objectives for the
utilization of DBEs in its procurements.
The following are Tribal PPG Eligible Grant
Programs.
(2) The Indian Environmental General Assistance
Program Act of 1992, 42 U.S.C. 4368b.
(3) Clean Air Act. Air pollution control (section
105).
(4) Clean Water Act.
(i) Water pollution control (section 106 and
518).
(ii) Water quality cooperative agreements
(section 104(b)(3)).
(iii) Wetlands development grant program
(section 104(b)(3)).
(iv) Nonpoint source management (section
319(h)).
(5) Federal Insecticide, Fungicide, and Rodenticide
Act.
(i) Pesticide cooperative enforcement (section
(ii) Pesticide applicator certification and
training (section 23(a)(2)).
(iii) Pesticide program implementation
(section 23(a)(l)).
(6) Pollution Prevention Act of 1990. Pollution
prevention grants for Tribes (section 6605).
(7) Safe Drinking Water Act.
(i) Public water system supervision (section
1443(a)).
(ii) Underground water source protection
(section 1443(b)).
(8) Toxic Substances Control Act.
(i) Lead-based paint program (section 404(g)).
(ii) Indoor radon grants (section 306).
(iii) Toxic substances compliance monitoring
(section 28).
(9) Department of Veterans Affairs and Housing
and Urban Development, and Independent
Agencies Appropriations Act, 1999 (Pub. L. 105-
276; 112 Stat. 2461, 2499; 42 U.S.C. 6908a).
(i) Hazardous Waste Management Program Grants
(Pub. L. 105-276; 112 Stat. 2461, 2499; 42 U.S.C.
6908a).
(ii) Underground Storage Tanks Program Grants (Pub.
L. 105-276; 112 Stat. 2461, 2499; 42 U.S.C.
6908a).
Tribal PPG Eligible Grant Programs are
listed in 40 CFR 35 Subchapter B, Section
35.533 and 35.501(a)(2-9). 40 CFR 35 can
be read online at http://ecfr.gpoaccess.gov.
Sample Determination of Exemption 2012
and DevelopmentGrant(Xon-PPG Eligible)
S oo ooo R^^ch and DevelopmentG
Six-monthextensiongranted
S20o,ooo Soil Analysis Grant [Xon-PPG Eligible)
8300, oooexceeds the $250,000 threshold,
so Tribe Adoes need to negotiatefairshare objectives.
Jan
Sioo,o oo extension
S200.OOO
July
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In future years, after eliminating PPG Eligible
grants, and GAP grants, the tribe's total may be
greater than $250,000, and they would need to
negotiate fair share objectives. Extensions are
included in the total dollar amount when
determining whether or not a grant recipient
has reached the threshold level.
For example, Tribe A receives a six-month
extension on its research and development grant
(the third grant in the sample eligibility
determination). Tribe A is also awarded a new EPA
grant in 2012 for $200,000. If this new grant
counts, then the total is $300,000. Even when that
amount is only eligible for half the year, it still
brings the total for the fiscal year over the
threshold level. The Tribe would need to negotiate
fair share objectives in 2012.
Options
If Exempt aTribal Nation
must still:
If NOT ExemptaTribal
Nation can choose to:
Follow the Six
Good Faith Efforts
File reports
Adopt the environmental
state agency's goals
Negotiate their own fair
share objectives
If a Tribal Nation is exempt from negotiating fair
share objectives:
There will be no goals in the "terms and
conditions" of the grant agreement.
They are still required to follow the Six
Good Faith Efforts.
They must still file DBE reports (EPA
Form 5700-52A)
If a Tribal Nation is NOT exempt from negotiating
fair share objectives they can choose one of two
options:
1. Adopt the environmental state agency's
goals
2. Negotiate their own fair share objectives
Adoption
Adoption means the award recipient agrees to
use the state's goals.
These goals are stated in the "terms and
conditions" section of the award document.
Adoption
Can we adopt the fair share objectives of another
recipient instead of negotiating new objectives?
Recipients may:
1. Elect to negotiate their own fair share
objectives, or
2. Adopt the fair share objectives of the lead
environmental state agency.
Recipients may use the approved fair share
objectives of another recipient with the same or a
similar relevant geographic buying market, when
purchasing the same or similar items, as a guide for
developing their fair share objectives.
If the Tribal Nation decides to adopt fair share
objectives, they affirm the acceptance of the lead
environmental state agency's fair share objectives
in the "terms and conditions" of the award
document.
For example, award "terms and conditions" might
specify:
The dollar amount of this assistance
agreement or the total dollar amount of
all of the Tribal Nation's financial
assistance agreements is $250,000 or
more. By signing this financial assistance
agreement, the Tribal Nation accepts the
fair share objectives stated herein and
attests to the fact that it is purchasing the
same or similar construction, supplies,
services, and equipment, in the same or
similar relevant geographic buying
market as the lead environmental state
agency whose objectives we are adopting.
Negotiation Process
« Proposed fair share objectives and supporting
documentation must be submitted within 120
days after the acceptance of the assistance
award.
° Narrative descriptions are acceptable.
Fair share objectives are negotiated every three
years.
° Objectives remain in effect for three federal fiscal
years unless there are significant changes to the
data supporting the fair share objectives.
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Learner Notes
Narrative descriptions are written words
like in a work plan rather than numbers
and forms like in a budget. Negotiators
need not present a formal proposal; plain
English explanations of your intentions are
fine.
What is the process for negotiating fair share
objectives?
Proposed fair share objectives and supporting
documentation must be submitted within 120 days
after the acceptance of the assistance award.
Narrative descriptions are acceptable, since there is
no official form. Since this was a new requirement
for Tribal Nations, there was a three-year phased-in
period. Full compliance by Tribal Nations was
required as of May 2011.
Fair share objectives are negotiated every three
years. They remain in effect for three fiscal years
(determined at the time of negotiation) unless there
are significant changes to the data supporting the
fair share objectives. (The negotiation process is
explained in greater detail below.)
Determination of Fair Share
Objectives
l. Calculate the funding level
2. Analyze the market
3. Submit your fair share objectives
Calculate the Funding Level
Determine the overall funding level for the
Tribal Nation, for example:
EPA provides
State provides
under a cost-share agreement
Total funding -
$800,000
$200.000
$1,000,000
The starting point for determining the Fair Share Objective
is the $1,000,000 total funding, not just the $800,000
contributed by EPA.
Calculate the Funding Level (continued)
In setting fair share objectives, the TribalNation should
consider only the total funding dollars spent on
procurement.
Expenses such as staff salaries and utilities are not
considered procurement, for example:
Total fund ing
Portion to be spent on procurement
$1,000,000
$500,000
The total of the four procurement categories is 15%, and thus the
goal of this project isto spend $75,000 in purchases from DBEs.
15% X $500,000 = $75,000
Determine Availability of DBEs
Common methods for analyzing the market are:
i. Availability analysis
2. Disparity study
3. Alternate Methods
l. Strength and weakness comparison charts
How do we determine fair share objectives?
There are many methods for determining fair share
objectives. Recipients often use availability
analyses, disparity studies, and strength/weakness
comparison charts, just to name a few. Grant funds
can be used to cover the cost of analysis. Ask your
regional DBE Coordinator for details.
Determination of fair share objectives usually
follows three basic steps:
1. Calculate the funding level
2. Analyze the market
3. Submit your fair share objectives
Availability Analysis
To conduct an availability analysis:
1. Determine the relevant market area.
2. Identify types of EPA awards received.
3. Identify categories of procurement.
4. Identify types of companies used.
5. Count the companies identified,
6. Sort companies by industry, ethnicity, and
gender.
7. Calculate availability.
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Analyze the Market
An availability analysis counts the appropriate
firms in the market area and determines the
percentage of firms that are DBEs. Two common
methods for analyzing the market are the (1)
availability analysis and (2) disparity study.
Availability Analysis
To conduct an availability analysis:
1. Determine the relevant market area.
2. Identify types of EPA awards
received.
3. Identify categories of procurement.
4. Identify types of companies used.
5. Count the companies identified.
6. Sort companies by industry, ethnicity,
and gender.
7. Calculate availability.
1. Determine the relevant market area.
The relevant market area is the geographical area
from which prime contractors and subcontractors
are drawn by the recipient for EPA-funded
programs. This area should be reasonable under the
circumstances. It may be a geographical portion of
a state, an entire state, or a multi-state area. Simply
ask, "Where do we normally shop for construction,
equipment, service, and supply vendors?"
Except for the U.S. Postal Service DBE
requirements apply to all procurements, even those
over which the Tribal Nation may have no control,
such as telephone, utility, and delivery services. If
service is provided by a DBE, then it counts toward
the fair share objectives. When a recipient procures
meals, lodging, gasoline, and emergency vehicle
repair services for employees on official travel, it
does not have to undertake the six steps before
each purchase unless a DBE travel agent is utilized,
in which case the amount purchased from that
travel agent would be reported as a DBE service.
2. Identify types of EPA awards received.
The Tribal Nation should pinpoint the types of
EPA awards it receives. These could include, for
example, funding for wastewater treatment
construction plants or Superfund remediation
projects. Each award recipient should review its
files for prior years to identify its EPA awards.
Going back several years will give the Nation a
picture of typical types of procurement; whereas,
using only a few months of recent data may
provide a skewed picture of typical contracting.
3. Identify categories of procurement.
For each type of award, the Tribal Nation should
determine the types of goods or services that were
used. Because DBE fair share objectives apply to
construction, equipment, services, and supplies,
award recipients should identify types of contract
awards previously made in each area. They can use
this information to determine potential contracting
opportunities on similar projects during the award
period.
In identifying types of procurement, remember to
include subcontractors as well as prime contractors.
A prime contractor on a construction project is a
general contractor. The subcontractors could
include a wide variety of specialties, such as
excavators, masons, haulers, painters, and
insulators, to name just a few.
4. Identify types of companies used.
A Tribal Nation should determine the approximate
total number of companies from each industry
where contracting opportunities have been
identified. This means all companies, no matter
who the owners are, whether they are majority
males, minorities, or women. Of these companies,
the Nation should determine the number that are
DBEs, MBEs, and WBEs.
A Tribal Nation can identify companies through:
Lists and databases
Outreach
Census information
States and local governments maintain information
on companies with which they have contracted or
could contract. Previously used companies are kept
on file and DBE data is already collected.
Companies not yet contracted with are often
surveyed for basic data and DBE status. Company
lists and databases produced by governmental
entities are available to the public.
Agencies that provide certifications maintain lists
of these companies, usually in online databases.
The most comprehensive lists are located at:
* Office of Small Business Programs (OSBP)
http://www.epa.gov/osbp/grants.htm
* Small Business Vendor Profile System
(SBVPS) http://cfpub.epa.gov/sbvps/ a database
registry for small and disadvantaged business
concerns
* System for Award Management (SAM):
http ://www. sam. gov
* Department of Transportation (DOT)
http://osdbuweb.dot.gov/Procurement/subcontractin
g_directorv.cfm a directory of DBE contractors
* Dynamic Small Business Search
http://dsbs.sba.gov/dsbs/search/dsp_dsbs.cfm
Check the List of Debarred Contractors
http://www. sam. gov to ensure the companies are
eligible.
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Module 9: Disadvantaged Business Enterprises (DBEs)
Outreach and other efforts to identify companies
include developing advertisements and notices to
let contractors know you are looking.
Publicize and distribute outreach materials
to industries listed in the Yellow Pages of
the phone book.
Place ads in newspapers, magazines, on
websites and other media.
Distribute notices through local chambers
of commerce, ethnic chambers of
commerce, and other agencies that
support DBEs.
Distribute notices through organizations
whose members include owners of DBEs,
such as:
National Association of Women Business
Owners http://www.nawbo. org/
Minority Business Development Agency
http://www.mbda.gov/
National Center for American Indian
Enterprise Development
http://www.ncaied.org
Set up an 800 number for reaching
designated staff members who can
provide information and answer questions
about the fair share policy and take
information from callers concerning their
businesses.
Use public access television to publicize
the fair share policy and the 800 number.
United States Economic Census data can be used to
determine both the total number of available
companies in the market region and the number
that are DBEs. Census profiles are updated every
five years, in the years ending in the numbers 2 and
7. Use County Business Patterns (CBP) in
conjunction with Survey of Minority-Owned
Business Enterprises (SMOBE) and Survey of
Women-Owned Business Enterprises (SWOBE) to
conduct an availability analysis of census data.
County Business Patterns census data is
available online at
http://www.census.gov/econ/cbp/index.html.
Information is provided on national, state,
county, and local levels.
Survey data is available online at
http://www.census. gov/csd/mwb/.
SMOBE and SWOBE provide statistics
about businesses that:
Are at least one-half owned by Blacks,
Hispanics, Asian Americans, Pacific
Islanders, Native Americans, or
Alaska Natives
File individual proprietorship, partnership,
or subchapter S-corporation tax forms
Have at least $500 annual receipts
The Office of Small Business Programs,
Disadvantaged Business Enterprise Program has
put together a list of resources to help you locate
certified DBE companies. The list is organized by
state, territory, and district. The DBE Resource List
will soon be online at
http://www.epa.gov/osbp/grants.htm and is provided in
the Appendix.
5. Count the companies identified.
Add the number of companies identified in the
market region for the total number of available
contractors/vendors.
6. Sort companies by industry, ethnicity, and
gender.
Categorize companies by the four industries:
construction, equipment, service, and supply. Also
determine the number of companies per industry
that are DBEs, MBEs, and WBEs. This data will be
needed for EPA reports.
7. Calculate availability.
After collecting information about companies
calculate their availability by dividing the number
of DBE companies by the entire number of
companies. The result of this calculation is
expressed as the percentage of available companies
that qualify for DBE compliance. This can be done
to figure the percentage of MBEs and WBEs as
well.
EPA Award: Build a bridge
Industry: Construction
Relevant market area: Name of Tribal Nation
Total number of construction companies in the
market region = 375
Number of construction companies in the market
region that are DBEs =18
DBE availability for the market region:
The base figure for DBE availability is five
percent. The base figure is adjusted every three
years by examining the evidence, re-contacting
companies on the list, and determining if anything
has changed. At this time, new companies are
added to the list and an adjusted base figure is
calculated.
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Module 9: Disadvantaged Business Enterprises (DBEs)
Learner Notes
Some Tribal Nations only allow Tribally
pre-approved subcontractors to work in the
Nation. These Tribal Nations should have
lists of Tribally-owned and disadvantaged
businesses. This is a good list of potential
bidders. Be sure to check with your Tribal
Nation's administration regarding any
restrictions on subcontractors.
Disparity Study
Market Are a
White Male-owned
8usineses75%
Minority/Worn en- owned
Business Enterprises25%
ANALYZE DISPARITY
Parity
Non-Parity
Whit* Male-ownt
Bu srness«s 75%
Business Enterprises 25%
White Male-owned
Businesses 95*
Mlnoritv/Women-envned
Suslneu Enterprises SH
Disparity Study
The data provided by a good disparity study can
make an excellent guide for setting narrowly
defined DBE objectives. A disparity study involves
comparing the available DBE prime contractors
and subcontractors with the contracts actually
awarded to them. Typically a disparity study is
performed by a consultant. The following is an
example of one way in which a consultant might
conduct a disparity study.
The first step is to perform an availability analysis,
either by using lists and outreach or by using
census information.
DISPARITY AND AVAILABILITY OVERLAP
Disparity Availability
Determine availability of all
DBEs.
Calculate ethnicity and
gender distribution.
Measure disparity between
utilization and availability.
Collect anecdotal accounts.
Study
/
Analysis
White Male-owned
Businesses 90%
Disadvantaged Business
Enterprises 10%
The second step is measuring the difference
between DBE availability and their actual use.
States use (1) statistics and (2) anecdotal evidence
to obtain an accurate picture of DBE opportunities.
Although statistics can measure DBE
underutuization, to be classified as discrimination
the underutilization must be caused by conditions
other than chance. Anecdotal accounts can help
show this causation. On the other hand, anecdotal
accounts by themselves cannot show systemic
patterns of discrimination. For this we rely on
statistics.
1. Statistical analysis requires mathematical
comparison of availability of DBEs and their
dollar participation in EPA programs. For
example:
Market Area
White Male-owned Businesses
90%
Disadvantaged Business
Enterprises 10%
Non-Parity
State X has 500 construction
companies. 50 of these or 10%
are DBEs. In 2011, State X
awarded $1,000,000 in
construction contracts. $50,000
(or 5%) of this was awarded to
DBEs. The disparity between
DBE availability (10%) and use
(5%) is 5%.
Parity
State Y has 500 construction
companies. 50 of these or 10%
are DBEs. In 2011, State Y
awarded $1,000,000 in
construction contracts. $100,000
(or 10%) of this was awarded to
DBEs. In this case there is no
disparity between the available
DBEs and their dollar
participation (parity exists).
2. Anecdotal evidence consists of accounts or
stories about personal experiences in the
contracting marketplace. Anecdotal accounts
should be collected from a variety of DBEs
and white male-owned businesses. While these
accounts alone do not justify race conscious
goals, combined with statistical information
they can constitute powerful evidence of
discrimination.
White Male-owned
Businesses 95%
Disadvantaged Business
Enterprises 5%
White Male-owned
Businesses 90%
Disadvantaged Business
Enterprises 10%
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Module 9: Disadvantaged Business Enterprises (DBEs)
These stories provide information on:
The kinds of discriminatory acts that
routinely occur,
How discriminatory barriers are imposed,
Who imposes them, and
Their effects on DBE development.
Anecdotal accounts combined with statistical
evidence provide the Tribal Nation with disparity
data. This data is used to formulate policies and
procedures that help to eradicate the effects of
discrimination on DBEs, specifically businesses
owned by Tribal members.
Costs incurred by the Tribal Nation to prepare a
market analysis may be eligible for grant funding,
if available. The grant recipient should review the
financial assistance agreement.
The base figure for DBE availability is 25 percent.
The base figure is adjusted every three years by
examining the evidence, re-contacting companies
on the list, and determining if anything has
changed. At this time, new companies are added to
the list and an adjusted base figure is calculated.
Strength and Weakness Comparison
Comparison charts organize anecdotal information.
Alternate Method: Strength and
Weakness Comparison Charts
Strengths
Weaknesses
Can we include the cost of negotiating fair share
objectives in the project budget?
It is possible for a Tribal Nation to include the
costs associated with goal negotiations in their
project budgets. However, the final approval and
exact method to do this is usually given on a case-
by-case basis. Contact your regional DBE
Coordinator to discuss your options.
Submit Fair Share Objectives
Document
° Fair share objectives
" Method used to calculate the funding level
" Data considered when determining the objectives
Submit within 120 days of accepting an award
Submit the determined fair share objectives
Once an award recipient has completed its
calculation of goals, it must write and submit the
fair share objectives. An objective might read, for
example:
The Tribal Nation will procure
construction, equipment, services, and
supplies for the EPA-funded bridge
building project at a cost of $75,000 from
companies with at least 25% certified as
disadvantaged business enterprises.
The Tribal Nation must give EPA enough data as
supporting evidence to help the agency understand
how the Nation came up with the proposed
objectives. If a disparity analysis was conducted,
that report should be included when the fair share
objectives are submitted. Supporting
documentation shows the:
Data considered when setting the goals
Method used to calculate the goals
A recipient must submit its proposed DBE fair
share objectives and supporting documentation to
its EPA Regional DBE Coordinator within 120
days after accepting a financial assistance award.
The EPA regional coordinator reviews the
objectives and documentation to make sure it is
reasonable. The regional coordinator may request
additional data, if needed, before approving the
objectives.
Fair Share Objectives Negotiation Process
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Module 9: Disadvantaged Business Enterprises (DBEs)
After Submission
EPA must respond in writing to the recipient's
submission within 30 days of receipt.
c EPA either agrees with the submission or provides
initial comments for further negotiation.
= The Tribal Nation can safely assume agreement if
EPA fails to respond within 30 days.
« Fairshare objectives mustbe agreed upon bythe
recipient and EPAbefore funds maybe
expended for procurement.
What happens to the fair share objectives after
they are submitted?
After the fair share objectives are submitted to
EPA, the Regional DBE Coordinator decides
whether to approve them or request additional
information. EPA must respond in writing to the
recipient's submission within 30 days of receipt.
EPA either agrees with the submission or provides
initial comments for further negotiation. The Tribal
Nation can safely assume agreement if EPA fails to
respond within 30 days.
DBE fair share objectives must be agreed upon by
the recipient and EPA before funds may be
expended for procurement. Fair share objectives
must be applied to all procurement categories (i.e.,
construction, equipment, services, and supplies).
Fair share objectives will remain in effect for three
(3) fiscal years (as determined at the time of
negotiation), unless there are significant changes to
the data supporting the fair share objectives.
Contact your DBE
Regional Coordinator
with any questions or
concerns.
their regional Grants Specialists. Regional Grants
Specialists oversee the work being done by the
Project Officers within their office or branch.
Program offices ensure compliance with DBE
requirements and monitor project progress.
Contact information provided at
http://www.epa.gov/osbp/grants.htm.
Different Goals and Objectives
Negotiation one (i) set of obj ectives for each
procurement expense:
= Construction
° Supplies
° Services
= Equipment
The recipient maynotnegotiate different
obj ectives for different grants.
Can we have different DBE objectives?
A grant recipient (Tribal Nation) negotiates
objectives for each procurement expense (i.e.,
construction, supplies, services, and equipment).
The negotiated goals and objectives are used for
each grant. You may not negotiate different
objectives for different grants. Regardless of how
many different programs and/or grants you have,
there will only be one set of objectives for the four
goals (i.e., procurement categories).
A fair share objective is a
based on the capacity and availability of
qualified, certified DBEs in the grant
recipient's geographical area.
A contractor
B. sub-recipient
C. procurement
D. EPA
E. All of the above
What is the program office's role and
responsibility?
For assistance awards not administered by EPA
regions, an EPA award official or designee is
responsible for negotiating the "fair share
objectives" and for ensuring that Project Officers,
other staff, and recipients comply with EPA's fair
share policy. Program offices work closely with
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Module 9: Disadvantaged Business Enterprises (DBEs)
Fair share objectives must be:
A. Negotiated
B. Adopted
C. Exempted
D. Applied to all procurement categories
E. All of the above
Determination of fair share
objectives usually includes:
A. Calculating the funding level
B. Analyzing the market
C. Submittingfair share objectives to EPA
D. Availability analyses or disparity studies
E. All of the above
For more information
Visit the EPA Office
of Small Business
Programs at
wvw/.epa.gov/osbp.
AND/OR
Contact your EPA
Regional DBE
Coordinator
Where can we get more information?
Fact sheets comparing previous EPA requirements
and recommendations with the current program are
provided in the Appendix. Additional information
is provided on the EPA Office of Small Business
Programs website at http://www.epa.gov/osbp/.
Contact your EPA regional DBE Coordinator with
questions specific to your project.
Learner Notes
In summary:
The DBE Program is a
requirement of every EPA grant.
The Office of Small Business
Programs is responsible for
policy and procedural guidance.
The DBE program encourages
federal dollars to flow down to
disadvantaged businesses (such
as Tribally-owned businesses).
DBE policy ensures
disadvantaged businesses receive
their fair share of federally
funded project funds.
Grantees agree to share the
wealth with other DBEs.
Learner Notes
Activity 9.d (found online at
www.petetribal.org) gives you a chance to
practice negotiating fair share objectives.
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Attachment to Module 9
Answers to Self-Assessment Questions
. is defined as the acquisition through contract, order, purchase, lease,
or barter of supplies, equipment, construction, or services needed to
accomplish federal assistance program objectives.
A. Contract
B. Procurement
C. Purchase
D. Sole source
E. None of the above
Procurement includes all expenses whether accomplished through contracts,
subcontracts, loans, and sub-awards, space and equipment leased or purchased
outright for construction, equipment, supplies, and services.
14
Who qualifies as a Disadvantaged Business Enterprise (DBE)?
A. Small businesses in rural and urban areas
B. Historically underutilized businesses
C. Businesses owned by women
D. Businesses owned by minorities
E. Allot the above
Many businesses qualify for DBE certification. If the business you wish to work
with is not already certified, remind them of the preferential treatment DBEs
31
Who can certify a business as disadvantaged?
A. Federal agencies such as SBA and DOT
B. State, local, and Tribal governments
C. Independent and private entities such as TERO
D. The Environmental Protection Agency
E. All of the above
Certification can be granted by a wide variety of organizations. Federal certification
under SBA and DOT grant a certified DBE the most benefits. EPA certification should
be sought as a last resort
34
DBEs are companies owned or controlled by at least.
economically disadvantaged individuals.
A. 11%
B. 25%
C. 51%
D. 75%
E. All of the above
.socially and
To qualify as a DBE under EPA programs an entity must establish that it is at least 51
percent owned and or controlled by socially and economically disadvantaged
individuals who are of good character and are citizens of the United States. An
individual claiming economic disadvantaged status must have an initial and continued
personal net worth of less than $750,000.
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Module 9: Disadvantaged Business Enterprises (DBEs)
47
estion (bold font indicates correct ansv
Dollar amounts reported on the DBE reporting form include:
A. All non-grant procurements for the tribal nation
B. All procurements for all EPA grant projects, combined
C. Just procurements for supplies and services
D. All DBE and non-DBE procurements for a single project
E. None of the above
Reporting includes all procurements and purchases, not just DBE purchases, for a
single award, not all EPA or grantee projects.
The sole exception to this rule is the State Revolving Fund Program, where the DBE
program requirements apply up to the amount of EPA's share.
50
A grant recipient needs to submit a DBE reporting form even when business
is not conducted with any DBEs.
A. True
B. False
C. It depends on whether procurement dollars were awarded to
DBEs in the previous fiscal year.
D. It depends on whether procurement dollars were awarded to
A DBE reporting form must be completed for every fiscal year of the EPA award's
project period.
E.
DBEs under other EPA awards.
None of the above
53
The DBE reporting form is signed by the:
A. Contractor
B. Sub-recipient
C. Loan recipient
D. EPA grantee
E. All of the above
A DBE reporting form must be signed by the person chosen by the Tribal Nation as
authorized to sign legal documents on the EPA award project.
82
A fair share objective is a .
. goal based on the capacity and availability of
qualified, certified DBEs in the grant recipient's geographical area.
A. contractor
B. sub-recipient
C. procurement
D. EPA
E. All of the above
Fair share objectives are goals set by a grant recipient to actively seek out and use
DBEs whenever possible.
A fair share objective is a procurement goal based on the capacity and availability of
qualified, certified DBEs in the grant recipient's geographical area.
o Capacity refers to the DBE's ability to provide the amount of goods or
services necessary to complete the project.
o Availability refers to the DBE's proximity to the
job site.
Last Updated April 2013
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Module 9: Disadvantaged Business Enterprises (DBEs)
Id font indicates correct answe
Fair share objectives must be:
A. Negotiated
B. Adopted
C. Exempted
D. Applied to all procurement categories
E. All of the above
Fair share objectives can be negotiated, adopted, or exempted but must be applied to
all procurement categories.
88
Determination of fair share objectives usually includes:
A. Calculating the funding level
B. Analyzing the market
C. Submitting fair share objectives to EPA
D. Availability analyses or disparity studies
E. All of the above
Recipients often use availability analyses, disparity studies, and strength/weakness
comparison charts, just to name a few. Determination of fair share objectives usually
follows three basic steps (1) calculate the funding level, (2) analyze the market, and (3)
submit your fair share objectives.
Last Updated April 2013
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