SPECIAL PROVISIONS



DISADVANTAGED BUSINESS ENTERPRISE REQUIREMENTS



L-1

312345









e.



Decisions concerning commercially useful function matters are not administratively

appeal able to USDOT.



COUNTING DBE PARTICIPATION (cont).



5.



312345



The following factors will be used to determine whether a DBE trucking firm is performing a

commercially useful function. The VIDPW shall evaluate the amount of work subcontracted,

industry practices and other relevant factors:



a.



The DBE must be responsible for the management and supervision of the entire trucking

operation for which it is responsible on a particular contract, and there cannot be a contrived

arrangement for the purposes of counting DBE participation.



The DBE must itself own and operate at least one fully licensed, insured, and operational

truck used on the contract.



The DBE receives credit for the total value of the transportation services it provides on the

contract using trucks it owns, insures, and operates using drivers it employs.



The DBE may lease trucks from another DBE firm, including an owner-operator who is

certified as a DBE. The DBE who leases trucks from another DBE receives credit for the

total value of the transportation services the lessee DBE provides on the contract.



The DBE may also lease trucks from a non-DBE firm, including an owner-operator. The DBE

who leases trucks from a non-DBE is entitled to credit only for the fee or commission it

receives as a result of the lease arrangement. The DBE does not receive credit for the total

value of the transportation services provided by the lessee, since these services are not

provided by a DBE.

A lease arrangement or agreement shall indicate that the DBE has exclusive use of and

control over the truck. This does not preclude the leased truck from working for others during

the term of the lease with the consent of the DBE, so long as the lease gives the DBE

absolute priority for use of the leased truck. Leased trucks shall display the name and

identification number of the DBE.

Prior to beginning work on a contract, the DBE must submit valid lease agreements fo the

VIDPW on all leased trucks and written agreements with owner/operators. Whether the

agreement is with an owner/operator or trucks hired from a trucking firm, the agreement must

include the:

- 1. Operator's Name;



2. Social Security number;



3. Federal Identification Number (FIN);



4. Cab Card Number of the Truck;



5. Description of the Truck and the Method of Payment.



The following factors are used in determining whether a DBE truck owner/operator will be

credited:



a.



b.



An Owner/Operator must own one (1) fully operational truck and operate it himself/herself for

hire. The individual must possess a Commercial Driver's License and the truck must have a

current registration and be properly licensed. If required, the firm must have the appropriate

operating license and insurance. The individual must be an independent owner/operator and

cannot be in an employee/employer relationship with a prime contractor.



Owner/Operator trucks may be utilized by the prime contractor to meet a DBE goal and must

be covered by a fully executed written agreement.



L-10

c.



For each owner/operator to be credited. the contractor or subcontractor must submit to the

VIDPW, a valid agreement that Includes or nas attached the following information:



Owner/operator’s name;



Social Security Number;



Copy of Vehicle registration receipt;



Current Vehicle license number,



Truck Number;



Method of payment (hour, ton, load).



NOARWN =



COUNTING DBE PARTICIPATION (cont).



312345



d.



The prime contractor may count towards its DBE participation, the total dollar value paid to an

owner/operator for the haul. Payments to owner/operators must be certified to by the prime

contractor prior to finalizing the project or as work progresses, as required by the VIDPW. if

required, the owner must be shown on the prime contractor's certified payroll.



Expenditures with DBEs for Materials or Supplies:



a.



if the materials or supplies are obtained from a DBE manufacturer, 400 percent of the

cost of the materials or supplies may be counted. For the purposes of this paragraph, a

manufacturer is a firm that operates or maintains a factory or establishment that

produces, on the premises, the materials, supplies, articles, or equipment required under

the contract and of the general character described by the specifications.



If the materials or supplies are purchased from a DBE regular dealer, 60 percent of the

cost of the materials or supplies may be counted.



With respect to materials or supplies purchased from a DBE which is neither a

manufacturer nor a regular dealer, only the entire amount of fees or commissions

charged for assistance in the procurement of the materials and supplies, or fees or

transportation charges for the delivery of materials or supplies required on the job site,

provided the VIDPW determines the fees to be reasonable and not excessive as

compared with fees customarily allowed for similar services. No portion of the cost of the

materials or supplies themselves may be counted toward DBE contract goals.



All listed DBE firms must be certified by the VIDPW prior to the prime contractor's submission of

the DBE Commitment Form A-585. Ifa firrn is not currently certified as a DBE in accordance with

approved certification standards at the time of the execution of the contract, the VIDPW may not



count the firm’s participation toward any DBE goals, except as provided for by the following, in

regards the effects of removal of eligibility by the VIDPW:



a.



When a prime contractor has made a commitment to using the ineligible firm or the

VIDPW has made a commitment to using a DBE prime contractor, but a subcontract or

contract has not been executed before the issue of a de-certification notice, the ineligible

firm will not count toward the contract goal or overall goal. The VIDPW shall direct the

prime contractor to meet the contract goal with an eligible DBE firm or demonstrate that it

has made good faith efforts to do so.



lf a prime contractor has executed a subcontract with the firm before the VIDPW has

notified the firm of its ineligibility, the prime contractor may continue to use the firm on the

contract and may continue to receive credit towards its DBE goal for the firm's work. In

this case, or in a case where the VIDPW has let a prime contractor to the DBE that was

later ruled ineligible, the portion of the ineligible firm's performance of the contract

remaining after the VIDPW has issued the notice of its ineligibility shall not count toward

the VIDPW’s overall goal, but may count toward the contract goal.



L-1]

10.



om Exception: {f the DBE’s ineligibility is caused solely by its having exceeded the size

standard during its performance of the contract, the VIDPW may continue to count its

participation on that contract toward overall and contract goals.



The VIDPW may not count the dollar value of work performed under a contract with a firm, after it

has ceased to be certified, toward the overall goal.



The VIDPW may not count the participation of a DBE subcontractor toward the prime contractor's

DBE achievements or the overall goal until the amount being counted toward the goal has been

paid to the DBE.



Over concentration shall be presumed to exist in a type of work, other than trucking work, when

either of the following conditions have been met:



COUNTING DBE PARTICIPATION (cont).



312345



a. More than 50% of the total number of firms ready, willing and able to perform such work are

comprised of DBE firms, or



b. DBE firms earned more than 50% of the total Federal-aid dollars spent on such work during

the previous federal fiscal year.



Over concentration shall be presumed to exist in trucking work when both the following conditions



have been met:



a. More than 80% of the total number of firms ready, willing and able to perform such work are

comprised of DBE firms and,



b. More than 80% of the total Federal-aid dollars spent on such work during the previous federal

fiscal year was earned by DBE firms.



In the event a presumption of overconcentration arises pursuant to the aforementioned sections,

VIDPW shall make further investigation to determine if the presumption of overconcentration in a

type of work is rebutted by a review of the totality of the circumstances. Such review shall

consider whether a false presumption of overconcentration is resulting from extraneous

influences such as the geographic location of the work versus the geographic location of the DBE

and non-DBE firms involved, the number and size of contracts giving rise to the appearance of

overconcentration, and any other relevant factors affection DBE or non-DBE participation in the

type of work.



If overconcentration in a type of work is deemed by VIDPW to exist, measures to address the

overconcentration will be devised. These measures may include the use of incentives, technical

assistance, business development programs, mentor-protégé programs and other appropriate

measures designated to assist DBE’s in performing work outside of the specific field in which it

has been determined that non-DBEs are unduly burdened.



The VIDPW shall annually determine and document whether DBE firms are so over concentrated

in a certain type of work as to unduly burden the opportunity of non-DBE firms to participate in

that type of work.



No credit for the use of DBEs in the type of work for which overconcentration is determined by

VIDPW to exist shall be given in the event a race-conscious DBE goal has been placed on a

project. If VIDPW determines such reduced credit is required for a type of work on a project,

VIDPW shall so notify prospective bidders in the Invitation For Bids.



L-12

TERMINATION / SUBSTITUTION / REPLACEMENT OF LISTED DBE FIRMS:



1. The VIDPW requires that the prime contractor not terminate for convenience a DBE

subcontractor listed in the DBE Commitment Form A-585, or an approved substitute DBE firm,

and then perform the work of the terminated subcontract with its own forces or those of an

affiliate, without the VIDPW’s prior written consent.



2. lf a DBE subcontractor is terminated, or the DBE firm fails to complete its work on the contract for

any reason, the VIDPW requires the prime contractor to make good faith efforts to find another

certified DBE subcontractor to substitute for the original DBE firm. These good faith efforts shall

be documented and directed at finding another certified DBE to perform at least the same amount

of work under the contract as the DBE that was terminated, to the extent needed to count DBE

participation.



3: lf a DBE subcontractor is unwilling or unable to perform the work of the commitment made to the

prime contractor, the prime contractor shall immediately notify in writing the VIDPW’s project

manager, and request to be relieved of the commitment to use the named DBE. The prime

contractor shall include with this request a justification and the good faith efforts made in dealing

with the named DBE.



4. If the prime contractor's request to be relieved is approved by the VIDPW, and a DBE contract

goal shortfall exists, the prime contractor shall immediately attempt to obtain sufficient DBE

participation by subconiracting with other certified DBEs.



5. if the prime contractor is unable to replace the committed DBE with another or other certified DBE

firms, the prime contractor shall evaluate the remaining items of work and shall document and

submit the good faith efforts made to subcontract work with certified DBEs or to purchase

materials or supplies from certified DBE suppliers for such remaining items. The VIDPW may

allow a DBE contract goal waiver, adjust the DBE goal accordingly as to submitted and accepted

good faith efforts, or assess liquidated damages as may be appropriate, depending on the

individual project's overall circumstances.



PROMPT PAYMENT MECHANISMS TO SUBCONTRACTORS:



To ensure that all obligations under contracts awarded to DBEs are met, the VIDPW will review the

contractor's DBE involvement efforts during the performance of the contract. Prime contractors shall pay

all subcontractors their respective subcontract amount by electronic transfer, if available, for VIDPW

accepted work within ten (10) calendar days after the contractor receives payment for such work from the

VIDPW. The contractor will be required to submit information as requested regarding all payments made

to DBEs and non-DBEs within ten (10) calendar days after the contractor receives payment for such work.

A prime contractor shall be required to fully document any alleged disputes with its subcontractors. The

contractor shall ensure that all situations in which regularly scheduled payments are not made to

subcontractors are reported to the VIDPW. If the prime contractor is found to be in violation or fails to

abide by the prompt payment mechanisms, the VIDPW shall impose sanctions as stated under Penalties



for Failure to Meet Overall Goals. The contractor shail further be required to release retainage payments

to the subcontractors within thirty (30) calendar days of satisfactory completion of the entire

subcontractor’s work and final payment of such work by the VIDPW.



RACE-CONSCIOUS MEASURES PROGRAM FOR LIQUIDATED DAMAGES:



The VIDPW shall impose, where appropriate, liquidated damages provision regarding the VIDPW's DBE

Program.



if at the completion of the project, the prime contractor has failed to meet the established or reduced DBE

goal, or has not demonstrated good faith efforts and/or has not obtained a DBE contract goal waiver, the



L-13

312345

prime contractor shall be assessed liquidated damages for the difference between the established or

reduced DBE goal and the actual DBE participation achieved.



RECORD KEEPING REQUIREMENTS AND THE MONTHLY PRIME

CONTRACTOR OR PRIME CONSULTANT PAYMENT INFORMATION FORM A-644

(Appendix E):



A. The prime contractor shall keep such records as necessary to ensure compliance with its DBE

utilization obligations.



2. As requested, the prime contractor will submit all subcontracts and other financial transaction

documentation executed with DBEs in such form, manner and content as prescribed by the

VIDPW.



3. The prime contractor must retain all such records for at least three (3) years after project



acceptance by the FHWA following the completion of the contract. .These records shall be

available for inspection by the VIDPW, the FHWA, the USDOT or other appropriately sanctioned

Virgin Islands State Agencies or Federal Agencies or Departments.



4. The prime contractor's DBE liaison officer or designee shall complete the top half of Form A-644,

Monthly Contractor DBE Participation, whether paid by the prime contractor or one of its

subcontractors, and submit the form or its facsimile to the VIDPW's project manager or designee

at the monthly estimate cutoff date.



5. The VIDPW will conduct, at a minimum, an annual audit on selected construction projects to

verify actual participation reported on Form A-644 Monthly Contractor DBE Participation.



COMPLIANCE PROCEDURES:



Whenever the VIDPW believes the recipient or the contractor or any subcontractor or supplier on a

USDOT-assisted contract may not be operating in compliance with the terms, conditions or requirements

of this DBE Program, including but not limited to, encouraging fronting, brokering or the circumstance of a

DBE not performing a commercially useful function as defined, the VIDPW will conduct an investigation.

If it is found that the recipient or the contractor or any subcontractor or supplier is not in compliance with

the DBE Program or these Special Provisions, the non-compliant party will be notified in writing by the

VIDPW. A compliance conference to discuss the area(s) of non-compliance may be held between the

VIDPW and the non-compliant party or parties. In the event that the non-compliant party or parties fails

or refuses to perform in compliance with the DBE Program or these Special Provisions, a “Notice of Non-

Compliance” will be transmitted. If the non-compliant party or parties corrects the deficiencies, the

“Notice of Non-Compliance” will be rescinded and the party or parties will be notified as to compliance. If

the deficiencies are not corrected, the VIDPW will initiate administrative action against the non-compliant

party or parties, which may include but not be limited to‘



1 Termination of the contract.



2. Withholding an appropriate percentage of partial payments. This appropriate percentage may be

the amount of any proposed monetary sanction.



3. Initiation of appropriate debarment or de-certification proceedings.



4. Referral of any unlawful actions to the appropriate enforcement agencies.



5. Other actions as appropriate, at the discretion of the VIDPW.



Updated 10/05



L-14



312345