[Code of Federal Regulations]
[Title 49, Volume 1]
[Revised as of October 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR23.25]

[Page 207-208]
 
                        TITLE 49--TRANSPORTATION
 
          Subtitle A--Office of the Secretary of Transportation
 
PART 23_PARTICIPATION OF DISADVANTAGED BUSINESS ENTERPRISE IN AIRPORT 
CONCESSIONS--Table of Contents
 
                        Subpart B_ACDBE Programs
 
Sec.  23.25  What measures must recipients include in their ACDBE programs 
to ensure nondiscriminatory participation of ACDBEs in concessions?

    (a) You must include in your ACDBE program a narrative description 
of the types of measures you intend to make to ensure nondiscriminatory 
participation of ACDBEs in concession and other covered activities.
    (b) Your ACDBE program must provide for setting goals consistent 
with the requirements of Subpart D of this part.
    (c) Your ACDBE program must provide for seeking ACDBE participation

[[Page 208]]

in all types of concession activities, rather than concentrating 
participation in one category or a few categories to the exclusion of 
others.
    (d) Your ACDBE program must include race-neutral measures that you 
will take. You must maximize the use of race-neutral measures, obtaining 
as much as possible of the ACDBE participation needed to meet overall 
goals through such measures. These are responsibilities that you 
directly undertake as a recipient, in addition to the efforts that 
concessionaires make, to obtain ACDBE participation. The following are 
examples of race-neutral measures you can implement:
    (1) Locating and identifying ACDBEs and other small businesses who 
may be interested in participating as concessionaires under this part;
    (2) Notifying ACDBEs of concession opportunities and encouraging 
them to compete, when appropriate;
    (3) When practical, structuring concession activities so as to 
encourage and facilitate the participation of ACDBEs
    (4) Providing technical assistance to ACDBEs in overcoming 
limitations, such as inability to obtain bonding or financing;
    (5) Ensuring that competitors for concession opportunities are 
informed during pre-solicitation meetings about how the recipient's 
ACDBE program will affect the procurement process;
    (6) Providing information concerning the availability of ACDBE firms 
to competitors to assist them in obtaining ACDBE participation; and
    (7) Establishing a business development program (see part 26, Sec.  
26.35); technical assistance program; or taking other steps to foster 
ACDBE participation in concessions.
    (e) Your ACDBE program must also provide for the use of race-
conscious measures when race-neutral measures, standing alone, are not 
projected to be sufficient to meet an overall goal. The following are 
examples of race-conscious measures you can implement:
    (1) Establishing concession-specific goals for particular concession 
opportunities.
    (i) If the objective of the concession-specific goal is to obtain 
ACDBE participation through a direct ownership arrangement with a ACDBE, 
calculate the goal as a percentage of the total estimated annual gross 
receipts from the concession.
    (ii) If the goal applies to purchases and/or leases of goods and 
services, calculate the goal by dividing the estimated dollar value of 
such purchases and/or leases from ACDBEs by the total estimated dollar 
value of all purchases to be made by the concessionaire.
    (iii) To be eligible to be awarded the concession, competitors must 
make good faith efforts to meet this goal. A competitor may do so either 
by obtaining enough ACDBE participation to meet the goal or by 
documenting that it made sufficient good faith efforts to do so.
    (iv) The administrative procedures applicable to contract goals in 
part 26, Sec.  26.51-53, apply with respect to concession-specific 
goals.
    (2) Negotiation with a potential concessionaire to include ACDBE 
participation, through direct ownership arrangements or measures, in the 
operation of the concession.
    (3) With the prior approval of FAA, other methods that take a 
competitor's ability to provide ACDBE participation into account in 
awarding a concession.
    (f) Your ACDBE program must require businesses subject to ACDBE 
goals at the airport (except car rental companies) to make good faith 
efforts to explore all available options to meet goals, to the maximum 
extent practicable, through direct ownership arrangements with DBEs.
    (g) As provided in Sec.  23.61 of this part, you must not use set-
asides and quotas as means of obtaining ACDBE participation.