49 C.F.R. § 26.33

What steps must a recipient take to address overconcentration of DBEs in certain types of work?

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(a) If you determine that DBE firms are so overconcentrated in a certain type of work as to unduly burden the opportunity of non-DBE firms to participate in this type of work, you must devise appropriate measures to address this overconcentration.

(b) These measures may include the use of incentives, technical assistance, business development programs, mentor-protégé programs, and other appropriate measures designed to assist DBEs in performing work outside of the specific field in which you have determined that non-DBEs are unduly burdened. You may also consider varying your use of contract goals, to the extent consistent with § 26.51, to unsure that non-DBEs are not unfairly prevented from competing for subcontracts.

(c) You must obtain the approval of the concerned DOT operating administration for your determination of overconcentration and the measures you devise to address it. Once approved, the measures become part of your DBE program.

Notes of Decisions

Cited in 4 cases, 2000–2016 · leading case: Midwest Fence Corp. v. United States Dep't of Transp., 840 F.3d 932 (7th Cir. 2016).

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Midwest Fence Corp. v. United States Dep't of Transp., 840 F.3d 932 (7th Cir. 2016). · cites it 2× “49 C.F.R. § 26.33 . The federal program also requires periodic reauthorization by Congress.”

Midwest Fence Corp. v. United States Dep't of Transp., 84 F. Supp. 3d 705 (N.D. Ill. 2015). “49 C.F.R. § 26.33 (a). Other provisions discussed above, such as the use of race-neutral measures to meet DBE participation goals and the availability of good faith efforts waivers, aim to keep the burden on non-DBEs minimal.”

Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir. 2000). “” 49 C.F.R. § 26.33 (a) (2000). While at the margin, some DBEs may be hired under the program in lieu of non-DBEs, the possibility that innocent parties will share the burden of a remedial program is itself insufficient to warrant the conclusion that the program is not narrowly…”

Midwest Fence Corp. v. TRAN (7th Cir. 2016). · cites it 2× “49 C.F.R. § 26.33 . The federal program also requires peri- odic reauthorization by Congress.”

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