[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR26.83]

[Page 291-293]
 
                        TITLE 49--TRANSPORTATION
 
          Subtitle A--Office of the Secretary of Transportation
 
PART 26_PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT 
OF TRANSPORTATION FINANCIAL ASSISTANCE PROGRAMS--Table of Contents
 
                   Subpart E_Certification Procedures
 
Sec. 26.83  What procedures do recipients follow in making certification 
decisions?

    (a) You must ensure that only firms certified as eligible DBEs under 
this section participate as DBEs in your program.
    (b) You must determine the eligibility of firms as DBEs consistent 
with the standards of subpart D of this part. When a UCP is formed, the 
UCP must meet all the requirements of subpart D of this part and this 
subpart that recipients are required to meet.
    (c) You must take all the following steps in determining whether a 
DBE firm meets the standards of subpart D of this part:
    (1) Perform an on-site visit to the offices of the firm. You must 
interview the principal officers of the firm and review their resumes 
and/or work histories. You must also perform an on-site visit to job 
sites if there are such sites on which the firm is working at the time 
of the eligibility investigation in your jurisdiction or local area. You 
may rely upon the site visit report of any other recipient with respect 
to a firm applying for certification;
    (2) If the firm is a corporation, analyze the ownership of stock in 
the firm;
    (3) Analyze the bonding and financial capacity of the firm;
    (4) Determine the work history of the firm, including contracts it 
has received and work it has completed;
    (5) Obtain a statement from the firm of the type of work it prefers 
to perform as part of the DBE program and its preferred locations for 
performing the work, if any;

[[Page 292]]

    (6) Obtain or compile a list of the equipment owned by or available 
to the firm and the licenses the firm and its key personnel possess to 
perform the work it seeks to do as part of the DBE program;
    (7) Require potential DBEs to complete and submit an appropriate 
application form, unless the potential DBE is an SBA certified firm 
applying pursuant to the DOT/SBA MOU.
    (i) You must use the application form provided in Appendix F to this 
part without change or revision. However, you may provide in your DBE 
program, with the approval of the concerned operating administration, 
for supplementing the form by requesting additional information not 
inconsistent with this part.
    (ii) You must make sure that the applicant attests to the accuracy 
and truthfulness of the information on the application form. This shall 
be done either in the form of an affidavit sworn to by the applicant 
before a person who is authorized by state law to administer oaths or in 
the form of an unsworn declaration executed under penalty of perjury of 
the laws of the United States.
    (iii) You must review all information on the form prior to making a 
decision about the eligibility of the firm.
    (d) When another recipient, in connection with its consideration of 
the eligibility of a firm, makes a written request for certification 
information you have obtained about that firm (e.g., including 
application materials or the report of a site visit, if you have made 
one to the firm), you must promptly make the information available to 
the other recipient.
    (e) When another DOT recipient has certified a firm, you have 
discretion to take any of the following actions:
    (1) Certify the firm in reliance on the certification decision of 
the other recipient;
    (2) Make an independent certification decision based on 
documentation provided by the other recipient, augmented by any 
additional information you require the applicant to provide; or
    (3) Require the applicant to go through your application process 
without regard to the action of the other recipient.
    (f) Subject to the approval of the concerned operating 
administration as part of your DBE program, you may impose a reasonable 
application fee for certification. Fee waivers shall be made in 
appropriate cases.
    (g) You must safeguard from disclosure to unauthorized persons 
information gathered as part of the certification process that may 
reasonably be regarded as proprietary or other confidential business 
information, consistent with applicable Federal, state, and local law.
    (h) Once you have certified a DBE, it shall remain certified for a 
period of at least three years unless and until its certification has 
been removed through the procedures of Sec. 26.87. You may not require 
DBEs to reapply for certification as a condition of continuing to 
participate in the program during this three-year period, unless the 
factual basis on which the certification was made changes.
    (i) If you are a DBE, you must inform the recipient or UCP in 
writing of any change in circumstances affecting your ability to meet 
size, disadvantaged status, ownership, or control requirements of this 
part or any material change in the information provided in your 
application form.
    (1) Changes in management responsibility among members of a limited 
liability company are covered by this requirement.
    (2) You must attach supporting documentation describing in detail 
the nature of such changes.
    (3) The notice must take the form of an affidavit sworn to by the 
applicant before a person who is authorized by state law to administer 
oaths or of an unsworn declaration executed under penalty of perjury of 
the laws of the United States. You must provide the written notification 
within 30 days of the occurrence of the change. If you fail to make 
timely notification of such a change, you will be deemed to have failed 
to cooperate under Sec. 26.109(c).
    (j) If you are a DBE, you must provide to the recipient, every year 
on the anniversary of the date of your certification, an affidavit sworn 
to by the firm's owners before a person who is authorized by state law 
to administer

[[Page 293]]

oaths or an unsworn declaration executed under penalty of perjury of the 
laws of the United States. This affidavit must affirm that there have 
been no changes in the firm's circumstances affecting its ability to 
meet size, disadvantaged status, ownership, or control requirements of 
this part or any material changes in the information provided in its 
application form, except for changes about which you have notified the 
recipient under paragraph (i) of this section. The affidavit shall 
specifically affirm that your firm continues to meet SBA business size 
criteria and the overall gross receipts cap of this part, documenting 
this affirmation with supporting documentation of your firm's size and 
gross receipts. If you fail to provide this affidavit in a timely 
manner, you will be deemed to have failed to cooperate under Sec. 
26.109(c).
    (k) If you are a recipient, you must make decisions on applications 
for certification within 90 days of receiving from the applicant firm 
all information required under this part. You may extend this time 
period once, for no more than an additional 60 days, upon written notice 
to the firm, explaining fully and specifically the reasons for the 
extension. You may establish a different time frame in your DBE program, 
upon a showing that this time frame is not feasible, and subject to the 
approval of the concerned operating administration. Your failure to make 
a decision by the applicable deadline under this paragraph is deemed a 
constructive denial of the application, on the basis of which the firm 
may appeal to DOT under Sec. 26.89.

[64 FR 5126, Feb. 2, 1999, as amended at 68 FR 35555, June 16, 2003]