Disadvantaged Business Enterprise Program Requirements
The core components of EPA’s DBE program include:
- MBE/WBE Certification
- Six Good Faith Efforts
- DBE Contract Administration Requirements
- MBE/WBE Reporting
- Record Keeping
Entities that meet the certification criteria under at least one of the following authorizing statutes are qualified for EPA’s DBE program:
EPA's 8% Statute
Under EPA’s 8% statute (Public Law 102-389, 42 U.S.C. 4370d), an entity must establish that it is owned or controlled by socially and economically disadvantaged individuals who are of good character and citizens of the United States. The statute presumes women to be socially and economically disadvantaged individuals. Public Law 102-389, 42 U.S.C. 4370d, provides for an 8% objective for awarding contracts under EPA financial assistance agreements to business concerns or other organizations owned or controlled by socially and economically disadvantaged individuals, including Historically Black Colleges and Universities (HBCU) and women.
EPA's 10% Statute
Under EPA’s 10% statute (Title X of the Clean Air Act Amendments of 1990, 42 U.S.C. 7601 note), an entity must establish that it is owned and controlled by socially and economically disadvantaged individuals who are of good character and citizens of the United States. The statute presumes HBCUs, Black Americans, Hispanic Americans, Native Americans, Asian Americans, Women, and Disabled Americans are socially and economically disadvantaged individuals. Title X of the Clean Air Act Amendments of 1990, 42 U.S.C. 7601 note, provides for a 10% objective for awarding contracts under EPA financial assistance agreements for research relating to such amendments to business concerns or other organizations owned and controlled by socially and economically disadvantaged individuals.
Note: Entities not covered by one of the two statute presumptions for socially and economically disadvantaged must meet the criteria listed in 40 CFR §33.202 and/or 40 CFR §33.203 to qualify for EPA’s DBE Program.
Six Good Faith Efforts
Recipients are required to make the following good faith efforts whenever procuring construction, equipment, services, and supplies under an EPA financial assistance agreement. A Native American recipient or prime contractor must follow the six good faith efforts only if doing so would not conflict with exiting Tribal or Federal law, including but not limited to the Indian Self-Determination and Education Assistance Act.
- Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities. For Indian Tribal, State, and Local Government recipients, this will include placing DBEs on solicitation lists and soliciting them whenever they are potential sources.
- Make information on forthcoming opportunities available to DBEs, arrange time frames for contracts, and 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.
- Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs. For Indian Tribal, 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.
- Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually.
- Use the services and assistance of the SBA and the Minority Business Development Agency of the Department of Commerce.
- If the prime contractor awards subcontracts, require the prime contractor to take the steps in items 1 through 5.
DBE Contract Administration Requirements
Recipients must adhere to the following contract administration requirements:
- Require the recipient’s 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.
- Require the recipient’s prime contractor to notify the recipient in writing prior to any termination of a DBE subcontractor for convenience by the prime contractor.
- Require the recipient’s prime contractor to employ the six good faith efforts described in §33.301 in procurement of goods and services.
- 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 described in §33.301 if soliciting a replacement subcontractor.
- Ensure that each procurement contract it awards contains the term and condition specified in the appendix concerning compliance with the requirements of this part.
- Ensure that the term and condition in the appendix is included in each procurement contract awarded by an entity receiving an identified loan under a financial assistance agreement to capitalize a revolving loan fund.
Please note that EPA Forms 6100-2, 6100-3 and 6100-4 have been suspended. However, the suspension of these forms does not affect the requirements for EPA assistance agreement recipients and the recipients of lower tier agreements (SRF loans, revolving loan programs, subawards, and prime contractors) to employ the use of the six good faith efforts and maintain proper documentation supporting those efforts.
Recipients must complete EPA Form 5700-52A to report MBE/WBE utilization under EPA assistance agreements when the combined total of funds budgeted for procuring supplies, equipment, construction or services exceeds the Simplified Acquisition Threshold. Annual reports are due by October 30th of each year. Final reports are due by October 30th or 90 days after the end of the project period, whichever comes first.
As of June 20, 2018, the Simplified Acquisition Threshold is $250,000; however, the specific dollar amount changes over time for inflation. Recipients should use the current value that has been set by the Office of Management and Budget.
A recipient must maintain all records documenting its compliance with the requirements of this program in accordance with applicable record retention requirements for the recipient's financial assistance agreement.
Except as exempted by 40 CFR §33.501(c), a recipient of a Continuing Environmental Program Grant or other annual grant must create and maintain a bidders list. Such a list must only be kept until the grant project period has expired and the recipient is no longer receiving EPA funding under the grant. In addition, 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. For entities receiving identified loans, the bidders list must only be kept until the project period for the identified loan has ended. The following information must be obtained from all prime and subcontractors:
- Entity's name with point of contact;
- Entity's mailing address, telephone number, and e-mail address;
- The procurement on which the entity bid or quoted, and when; and
- Entity's status as an MBE/WBE or non-MBE/WBE.
For additional information on EPA’s DBE program, see the EPA DBE Program Frequently Asked Questions.