49 C.F.R. § 26.13

What assurances must recipients and contractors make?

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(a) Each financial assistance agreement you sign with a DOT operating administration (or a primary recipient) must include the following assurance: The recipient shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements 49 CFR part 26. The recipient shall take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. The recipient's DBE program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under 49 CFR part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.).

(b) Each contract you sign with a contractor (and each subcontract the prime contractor signs with a subcontractor) must include the following assurance: The contractor, sub recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR part 26 in the award and administration of DOT-assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:

(1) Withholding monthly progress payments;

(2) Assessing sanctions;

(3) Liquidated damages; and/or

(4) Disqualifying the contractor from future bidding as non-responsible.

[79 FR 59593, Oct. 2, 2014]

Notes of Decisions

Cited in 3 cases, 2000–2000 · leading case: United States v. Bros. Constr. Co. of Ohio, Inc., United States of Am. v. Tri-State Asphalt Corp., 219 F.3d 300 (4th Cir. 2000).

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United States v. Bros. Constr. Co. of Ohio, Inc., United States of Am. v. Tri-State Asphalt Corp., 219 F.3d 300 (4th Cir. 2000). “See 49 C.F.R. § 26.13 (1999). Contractors are also required to comply with federal regulations that apply to DBE participation on such a project.”

United States v. Ware (4th Cir. 2000). “See 49 C.F.R. § 26.13 (1999). Tri-State Asphalt Corporation (Tri- State) was the prime contractor on the project, and it had awarded Bunn Construction Company (Bunn) the underdrain subcontract.”

United States v. Bros. Const (4th Cir. 2000). “See 49 C.F.R. § 26.13 (1999). Contractors are also required to comply with federal regulations that apply to DBE participation on such a project.”

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