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LOCAL PUBLIC AGENCIES & TITLE VI NONDISCRIMINATION RESPONSIBILITIES

Southern Transportation Civil Rights Executive Council (STCREC) Training SymposiumAtlanta, GeorgiaJune 12, 2012

Mohamed Sulaiman DumbuyaResource Center Civil Rights Technical Service Teammohamed.dumbuya@dot.gov

U. S. Department of TransportationFederal Highway Administration

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SESSION OUTCOMES Briefly Discuss the Increased Focus on LPA Projects Recognize Delegation of Federal-aid Project

Administration and Management to LPAs Define FHWA’s Nondiscrimination Program Identify LPA Title VI Nondiscrimination

Responsibilities

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BACKGROUND

ISTEA (PL 102-240, 1991)

SAFETEA–LU (PL 109-59, 2006)

Provided for State DOTs to expand LPA programs to increase funding categories

Calls for establishment of oversight system to monitor the effective and efficient use of funds and be responsive to all areas relating to financial integrity and project delivery

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BACKGROUND CONTINUED

23 U.S.C. § 106(g)(4)(A)

[as amended by SAFETEA-LU]

RESPONSIBILITY OF THE STATES

The States shall be responsible for determining that subrecipients of Federal funds under this title have- (i) adequate project delivery

systems for projects approved under this section; and

(ii) sufficient accounting controls to properly manage such Federal funds.

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FHWA NATIONAL PROGRAM REVIEW TEAM

Revived in 2006

I “Assess the administration, oversight and stewardship of local public agency Federal-aid projects…

II. Identify areas for improvement that will ensure the overall quality and effectiveness of local project activities along with any needed changes in the oversight requirements.”

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FHWA NATIONAL REVIEW OF FEDERAL-AID PROJECTS ADMINISTERED BY LPAS

Findings

The administration of Federal-aid projects by LPAs appeared to lack a systematic or comprehensive oversight approach.

Current oversight activities, as a whole, may be inconsistent from State to State; and

Current oversight activities may be ineffective for ensuring that Federal-aid requirements are met on LPA-administered projects.

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FHWA 2007 & 2008 DIVISION REVIEWS

Most common findings

Lack of knowledge on the part of LPAs of the processes and procedures for establishing and administering federal-aid projects,

Lack of knowledge of federal and state requirements that need to be met in order to secure and maintain federal funding.

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FHWA CONCLUSION & RESPONSE

Conclusion

Response

LPA-administered projects is a High Risk area that requires particular attention

FHWA should get States to fulfill their responsibilities with respect to local projects

States need a systematic approach to ensure adequate administration of local projects (quality control) and that FHWA should ensure that States fulfill their responsibilities (quality assurance)

FHWA needs to assist the States in developing mechanisms to improve stewardship and oversight of local projects

Developing Local Project Oversight Program requirements consistent with recommendations

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STATE TRANSPORTATION AGENCIES & FEDERAL-AID HIGHWAY FUNDS

State Transportation Agencies (STAs) are the principal recipients of Federal-aid Highway Funds

STAs are responsible for construction of all Federal-aid projects

“Any State desiring to avail itself of the provisions of this title shall have a State transportation department which shall have adequate powers, and be suitably equipped and organized to discharge to the satisfaction of the Secretary the duties required by this title.” (23 USC 302(a))

“The ST[A] has responsibility for the construction of all Federal-aid projects, and is not relieved of such responsibility by authorizing performance of the work by a local public agency or other Federal agency.” (23 CFR 635.105(a))

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DELEGATION OF PROJECT MANAGEMENT ACTIVITIES

STAs may delegate Federal-aid project administration and management to subrecipients including Local Public Agencies (LPAs)

“The State highway department may utilize, under its supervision, the services of well-qualified and suitably equipped engineering organizations of other governmental entities for making surveys, preparing plans, specifications and estimates, and for supervising the construction of any projects.” (23 CFR 1.11(b))

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WHO ARE LOCAL PUBLIC AGENCIES?

Local Public Agency

LPA SOP Template

“any city, county, township, municipality, or other political subdivision that may be empowered to cooperate with the State transportation department in highway matters” (23 CFR 635.102)

Any organization, other than the State Transportation Agency, with administrative or functional responsibilities which are directly or indirectly affiliated with a governmental body of any nation, State, or local jurisdiction

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LPAS MUST ABIDE BY ALL FEDERAL REQUIREMENTS

LPAs are required to carry out their Federal-aid project actions in accordance with all applicable Federal requirements

“When the work is to be performed under a contract awarded by a local public agency, all Federal requirements including those prescribed in this subpart shall be met.” (23 CFR 635.105(c)(2))

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NONDISCRIMINATION IN THEFEDERAL-AID PROGRAM

Nondiscrimination denotes absence of disparate treatment or impact in Federally-assisted programs and activities

Nondiscrimination in the Federal-aid program is governed by: Title VI of the Civil Rights Act of 1964 The 1987 Restoration Act and Other Nondiscrimination authorities

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THE 1964 CIVIL RIGHTS ACT- TITLES

Title I - Voting Rights Title II - Public Accommodation Title III - Desegregation of Public Facilities Title IV - Desegregation of Public Education Title V - Commission on Civil Rights Title VI - Nondiscrimination in Federally Assisted

Programs & Activities Title VII - Equal Employment Opportunity Title VIII - Registration and Voting Statistics Title IX - Intervention & Procedure after Removal in Civil Rights

Cases Title X - Establishment of Community Relations Service Title XI - Miscellaneous

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TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

Federal law that prohibits discrimination on the basis of race, color, or national origin in Federal programs and activities;

The law specifically states:

“No person in the United States shall on the ground of race, color, or national origin be excluded from participation in, denied the benefits of, or subjected to discrimination under any program or activity receiving Federal financial assistance.” (42 USC 2000d)

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CIVIL RIGHTS RESTORATION ACT OF 1987

Direct response to the 1984 Supreme Court decision in the Grove City College vs. Bell case (465 U.S. 555)

Restored the original intent of Title VI to include all programs and activities of Federal-aid recipients and contractors whether federally funded or not

Federal agency nondiscrimination requirements limited to just those areas of the recipient’s operation that directly benefited from Federal assistance

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WHAT IS FHWA’S TITLE VINONDISCRIMINATION PROGRAM?

Not limited to prohibitions of Title VI of the Civil Rights Act of 1964

Includes other civil rights provisions of Federal statutes & related authorities that prohibit discrimination in programs & activities receiving Federal financial assistance (23 CFR 200.5(p))

Other Nondiscrimination & Cross-cutting Authorities include: The 1970 Uniform Act (42 USC 4601) Section 504 of the 1973 Rehabilitation Act (29 USC 790) The 1973 Federal-aid Highway Act (23 USC 324) The 1975 Age Discrimination Act (42 USC 6101) Executive Order 12898 on Environmental Justice (EJ) Executive Order 13166 on Limited English Proficiency (LEP)

TITLE VI LAW VERSUSTITLE VI NONDISCRIMINATION

PROGRAM

Title VI of CRA of 1964

Coverage

FHWA Title VI Nondiscrimination Program Coverage

Race Race Color Color

National Origin (LEP) National Origin (LEP)Handicap/Disability

Sex (Gender)Age

Low Income & Minorities

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LPA TITLE VI NONDISCRIMINATION RESPONSIBILITIES

SIGNED ASSURANCES

1) Signed Assurances

“every [award of, or] application for Federal financial assistance shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the [award or] application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed…” (49 CFR 21.7)

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Standard DOT Title VI Assurances

DOT 1050.2 Dated 8/24/71

Title VI Nondiscrimination Assurances For FHWA Recipients

The (Title of Recipient) (hereinafter referred to as the "Recipient") HEREBY AGREES THAT as a condition to receiving any Federal financial assistance from the Department of Transportation (the Federal Highway Administration), it will comply with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d-42 U.S.C. 2000d-4 (hereinafter referred to as the Act), and all requirements imposed by or pursuant to Title 49, Code of Federal Regulations (CFR), Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, Title 23 Code of Federal Regulations, Part 200, Title VI Program and Related Statutes – Implementation and Review Procedures (hereinafter referred to as the Regulations) and other pertinent nondiscrimination authorities and directives, to the end that in accordance with the Act, Regulations, and other pertinent nondiscrimination authorities and directives, no person in the United States shall, on the grounds of race color, or national origin, sex (23 USC 324), age (42 USC 6101), disability/handicap (29 USC 790) and low income (Executive Order 12898) be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which the Recipient receives Federal financial assistance from the Department of Transportation, including the Federal Highway Administration, and HEREBY GIVES ASSURANCE THAT it will promptly take any measures necessary to effectuate this agreement. This assurance is required by Title 49 Code of Federal Regulations, subsection 21.7(a)(1) and Title 23 Code of Federal Regulations, section 200.9(a) (1) of the Regulations, copies of which are attached. More specifically and without limiting the above general assurance, the Recipient hereby gives the following specific assurances with respect to its (Name of Appropriate Program): 1. That the Recipient agrees that each "program" and each "facility as defined in 49 CFR

subsections 21.23(e) and (b) and 23 CFR 200.5(k) and (g) of the Regulations, will be (with regard to a "program") conducted, or will be (with regard to a "facility") operated in compliance with all requirements imposed by, or pursuant to, the Regulations.

2. That the Recipient shall insert the following notification in all solicitations for bids for work or

material subject to the Regulations and made in connection with all (Name of Appropriate Program) and, in adapted form in all proposals for negotiated agreements:

The (Recipient), in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation and Title 23 Code of Federal Regulations, Part 200, Title VI Program and Related Statutes, issued pursuant to such Acts, hereby notifies all bidders that it will affirmatively insure that in any contact entered into pursuant to this advertisement, disadvantaged business enterprises will be affored full opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, national origin, sex, age, disability/handicap and low income in consideration for an award.

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3. That the Recipient shall insert the clauses of Appendix A of this assurance in every contract subject to the Acts and the Regulations.

4. That the Recipient shall insert the clauses of Appendix B of this assurance, 'as a covenant

running with the land, in any deed from the United States effecting a transfer of real property, structures, or improvements thereron, or interest therein.

5. That where the Recipient receives Federal financial assistance to construct a facility, or part of a facility, the assurance shall extend to the entire facility and facilities operated in connection therewith.

6. That where the Recipient receives Federal financial assistance in the form, or for the acquisition of real property or an interest in real property, the assurance shall extend to rights to space on, over or under such property.

7. That the Recipient shall include the appropriate clauses set forth in Appendix C of this assurance, as a covenant running with the land, in any future deeds, leases, permits, licenses, and similar agreements entered into by the Recipient with other parties: (a) for the subsequent transfer of real property acquired or improved under (Name of Appropriate Program); and (b) for the construction or use of or access to space on, over or under real property acquired, or improved under (Name of Appropriate Program).

8. That this assurance obligates the Recipient for the period during which Federal financial assistance is extended to the program, except where the Federal financial assistance is to provide, or is in the form of, personal property, or real property or interest therein or structures or improvements thereon, in which case the assurance obligates the Recipient or any transferee for the longer of the following periods: (a) the period during which the property is used for a purpose for which the Federal financial assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the Recipient retains ownership or possession of the property.

9. The Recipient shall provide for such methods of administration for the program as are found by the Secretary of Transportation or the official to whom he delegates specific authority to give reasonable guarantee that it, other recipients, subgrantees, contractors, subcontractors, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Act, the Regulations and this assurance.

10. The Recipient agrees that the United States has a right to seek judicial enforcement with regard to any matter arising under the Act, the Regulations, and this assurance.

THIS ASSURANCE is given in consideration of and for the purpose of obtaining any and all Federal grants, loans, contracts, property, discounts or other Federal financial assistance extended after the date hereof to the Recipient Department of Transportation under the (Name of Appropriate Program) and is binding on it, other recipients, subgrantees, contractors, subcontractors, transferees, successors in interest and other participants in the (Name of Appropriate Program). The person or persons whose signatures appear below are authorized to sign this assurance on behalf of the Recipient

Dated______________

_____________________________ (Recipient)

by_______________________________ (Signature of Authorized Official)

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APPENDIX A During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "contractor") agrees as follows: (1) Compliance with Regulations: The contractor shall comply with the Regulation relative to

nondiscrimination in Federally-assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, and the Federal Highway Administration (hereinafter “FHWA”) Title 23, Code of Federal Regulations, Part 200 as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract.

(2) Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, shall

not discriminate on the grounds of race, color, or national origin, sex, age, and disability/handicap and low income in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by 49 CFR, section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations.

(3) Solicitations for Subcontractors, Including Procurements of Materials and Equipment: In all

solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potiential subcontactor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin, sex, age, and disability/handicap and low income.

(4) Information and Reports: The contractor shall provide all information and reports required by the

Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the (Recipient) or the FHWA to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information the contractor shall so certify to the (Recipient), or the FHWA as appropriate, and shall set forth what efforts it has made to obtain the information.

(5) Sanctions for Noncompliance: In the event of the contractor's noncompliance with the nondiscrimi-

nation provisions of this contract, the (Recipient) shall impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to:

(a.) withholding of payments to the contractor under the contract until the contractor complies, and/or (b.) cancellation, termination or suspension of the contract, in whole or in part.

(6) Incorportation of Provisions: The contractor shall include the provisions of paragraphs (1) through

(6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto.

The contractor shall take such action with respect to any subcontract or procurement as the (Recipient) or the FHWA may direct as a means of enforcing such provisions including sanctions for non-compliance: Provided, however, that, in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the (Recipient) to enter into such litigation to protect the interests of the (Recipient), and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

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APPENDIX B

A. The following clauses shall he included in any and all deeds effecting or recording the transfer of real property, structures or improvements thereon, or interest therein from the United States.(GRANTING CLAUSE)NOW, THEREFORE, the Department of Transportation, as authorized by law, and upon the condition that the (Name of Recipient) will accept title to the lands and maintain the project constructed thereon, in accordance with (Name of Appropriate Legislative Authority), the Regulations for the Administration of (Name of Appropriate Program) and the policies and procedures prescribed by (Name of Appropriate Administration) of the Department of Transportation and, also in accordance with and in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation (hereinafter referred to as the Regulations) pertaining to and effectuating the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. .2000d to 2000d-4), does hereby remise, release, quitclaim and convey unto the (Name of Recipient) all the right, title and interest of the Department of Transportation in and to said lands described in Exhibit "A" attached hereto and made a part hereof.(HABENDUM CLAUSE)TO HAVE AND TO HOLD said lands and interests therein unto (Name of Recipient) and its successors forever, subject, however, to the covenants, conditions, restrictions and reservations herein contained as follows, which will remain in effect for the period during which the real property or structures are used for a purpose for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits and shall be binding on the (Name of Recipient), its successors and assigns.The (Name of Recipient), in consideration or the conveyance of said lands and interests in lands, does hereby covenant and agree as a covenant running with the land for itself, its successors and assigns, that (1) no person shall on the grounds of race, color, or national origin, he excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination with regard to any facility located wholly or in part on over or under such lands hereby conveyed [and)* (2) that the (Name of Recipient) shall use the lands and interests in lands and interests in lands so conveyed, in compliance with all requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of -the Secretary, Part 21, Nondiscrimination in federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may he amended and (3) that in the event of breach of any of the above-mentioned nondiscrimination conditions, the Department shall have a right to re-enter said lands and facilities on said land, and the above described land and facilities shall thereon revert to and vest in and become the absolute property of the Department of Transportation and its assigns as such interest existed prior to this instruction.*

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APPENDIX C

The following clauses shall be included in all deeds, licenses, leases, permits, or similar instruments entered into by the (Name of Recipient) pursuant to the provisions of Assurance 7(a).

The (grantee, licensee, lessee, permitee, etc., as appropriate) for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree [in the case of deeds and leases add "as a covenant running with the land"] that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this (deed, license, lease, permit, etc.) for a purpose for which a Department of Transportation program or activity is extended or for another purpose involving the provision of similar services or benefits, the (grantee, licensee, lessee, permitee, etc.) shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, office of the Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.

[Include in licenses, leases, permits, etc.]*

That in the event of breach of any of the above nondiscrimination covenants, (Name of Recipient) shall have the right to terminate the [license, lease, permit, etc.] and to re-enter and repossess said land and the facilities thereon, and hold the same as if said [licenses, lease, permit, etc.] had never been made or issued.

[Include in deed.]*

That in the event of breach of any of the above nondiscrimination covenants, (Name of Recipient) shall have the right to re-enter said lands and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of (Name of Recipient) and its assigns.

The following shall be included in all deeds, licenses, leases, permits, or similar agreements entered into by (Name of Recipient) pursuant to the provisions of Assurance 7(b).

The (grantee, licensee, lessee, permitee, etc., as appropriate) for himself, his personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree (in the case of deeds, and leases add "as a covenant running with the land") that (1) no person on the ground of race, color. or national origin shall be excluded from participation in, denied the benefits of, or he otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over or under such land and the furnishing of services thereon, no person on the ground of, race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the (grantee, licensee, lessee, permitee, etc.) shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations. Department of Transportation, Subtitle A, Office of the Secretary. Part 21, Nondiscrimination in Federally-assisted programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964), and as said Regulations may be amended.

[Include in licenses, leases, permits, etc.]*

That in the event of breach of any of the above nondiscrimination covenants, (Name of Recipient) shall have the right to terminate the [license, lease, permit, etc.] and to re-enter and repossess said land and the facilities thereon, and hold the same as if said [license, lease, permit, etc.] had never been made or issued.

[Include in deeds]*

That in the event of breach of any of the above nondiscrimination covenants, (Name of Recipient) shall have the right to re-enter said land and facilities thereon, and the above described lands and facilities shall thereupon revert to and vest in and become the absolute property of (Name of Recipient) and its assigns.

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SIGNED ASSURANCES CONTD.

Failure or refusal to furnish required assurance is grounds for the termination, refusal to grant or continue Federal financial assistance

“If an applicant fails or refuses to furnish an assurance required under § 21.7 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to this section, Federal financial assistance may be refused…” (49 CFR 21.13(b)&(c))

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METHODS OF ADMINISTRATION

2) Methods of Administration

“The Recipient shall provide for such methods of administration …to give reasonable guarantee that it, other recipients, sub-grantees, contractors, subcontractors, transferees, successors in interest, and other participants of Federal financial assistance under such program will comply with all requirements imposed or pursuant to the Act, the Regulations and this assurance” (USDOT Assurance #9); see also 49 CFR 21.7(b).

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METHODS OF ADMINISTRATION CONTD.

Minimum Requirements

Public outreach & education plan/procedures Training program for staff and others Procedures for processing complaints Program to assess (review) and periodically report on status of Title

VI compliance Detailed plans for bringing discriminatory programs into

compliance Data collection procedures and methods

(see Compliance Officer’s Manual, 1966, p. 6-7)

MOAs are contained in a Title VI Nondiscrimination Implementation Plan

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IMPLEMENTATION PLAN

3) Title VI Nondiscrimination Implementation Plan

Title VI Nondiscrimination Statement of Policy Express commitment to Title VI Nondiscrimination obligation Policy signed by Chief Administrative Officer Policy statement circulated throughout organization & public

Organization & Structure Depict the MARS of the Nondiscrimination Program Designate Title VI Coordinator, Manager or Specialist Outline role(s), responsibilities and authority

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IMPLEMENTATION PLAN CONTD. Procedures for Assuring Compliance and

Enforcement Outreach, training, reviews, data collection,

complaint process and enforcement

Accomplishment Report Accomplishments made since last report/update

Title VI Nondiscrimination issues identified and addressed

Reviews conducted Summary and status of complaints filed

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IMPLEMENTATION PLAN CONTD. Annual Work Plan

Outline Title VI Nondiscrimination monitoring and review activities planned for the coming plan year

State by whom each activity will be accomplished and target date for completion

Required Title VI Nondiscrimination Contract Provisions Procedures to ensure Title VI Nondiscrimination provisions are included

in all Federally-funded contracts regardless of tier (Appendix A of USDOT Order 1050.2) Nondiscrimination in selection and retention of subcontractors;

procurement of materials and leases of equipments Nondiscrimination in notification of Title VI obligation to each

potential subcontractor or supplier Nondiscrimination in employment practices

When employment is primary objective of Federal assistance Discrimination in employment results in discrimination in services provided by

Federally-assisted programs

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IMPLEMENTATION PLAN CONTD. Disadvantaged

Business Enterprises (DBE)

Participation by Small Business Enterprises

Procedures to ensure that DBEs are afforded opportunity to participate in Federal-aid Highway programs and activities

“It is declared to be in the national interest to encourage and develop the actual and potential capacity of small business and to utilize this important segment of our economy to the fullest practicable extent in construction of the Federal-aid highway systems, including the Interstate System. In order to carry out that intent and encourage full and free competition, the Secretary should assist, insofar as feasible, small business enterprises in obtaining contracts in connection with the prosecution of the highway program.” (23 USC § 304) &

(49 CFR 26, effective 2/2011)

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NONDISCRIMINATION AGREEMENTS Abbreviated Title VI Nondiscrimination Plans for LPAs

serving a population less than 100,000 Key Elements include:

(1) Assurances(2) Implementing Procedures(3) Complaint Procedures(4) Sanctions(5) Signatures

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IS THE LPA CONTRACTOR OR CONSULTANT REQUIRED TO HAVE A TITLE VI NONDISCRIMINATION IMPLEMENTATION PLAN?

First, you need to determine if the party is a Recipient or a Contractor/Consultant/Vendor

If a Recipient, they are required to have an Implementation Plan (Method of Administration)

If a Contractor, etc. they are not required to have an IP

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WHO IS A [SUB]RECIPIENT?

RecipientAn entity or person to whom Federal assistance is

directly extended and thereby subjects them to Title VI compliance obligations (23 CFR 200.5(n))

SubrecipientAn entity or person to whom Federal assistance is

indirectly extended either through a recipient or another subrecipient and thereby subjects them to Title VI compliance obligations (23 CFR 200.5(n))

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WHO IS A CONTRACTOR?A Contractor/Subcontractor

“..any person, corporation, partnership, or unincorporated association that holds a FHWA direct or federally assisted construction contract or subcontract regardless of tier”

(23 CFR 230.407 (i))

“One who participates, through a contract or subcontract (at any tier), in a DOT-assisted highway, transit, or airport”

(49 CFR 26.5)

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WHAT IS THE DISTINCTION BETWEEN A RECIPIENT & A CONTRACTOR?

Recipient/Subrecipient Contractor/Subcontractor, Consultant, Vendor

Provides services Sells deliverables (goods & services)

Signs an Assurance Not necessarily in business to make profit (Usually, public entity)

Signs a Contract with contract provisions In business (buy & sell) to make profit(Operates in a competitive environment)

Receives FFA (or paid) whether service is expensed as a deliverable or not

Is paid for a specific deliverable*Receipt of payment with FFA does not establish a recipient/subrecipient relationship

Designs a program to meet a broader goal

Provides specific product or service ancillary to a Federal program

Is receiving Federal financial assistance

Could become a recipient with provision of [Federal financial] assistance.

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KEY POINTS

SAFETEA –LU created the impetus for increased focus on LPA project delivery

LPAs must carry out Federal-aid Highway projects in accordance with all applicable Federal requirements

LPAs must have Signed Assurances (USDOT 1050.2) They are binding agreements Failure or refusal to furnish required signed assurances may result in refusal

of Federal financial assistance

Methods of Administration & Implementation Plans Nondiscrimination Agreements (Population < 100,000) Ceteris paribus, Only Recipients, Not Contractors, are required

to have T6NIPs

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Questions ??

Comments??

Concerns??

Suggestions ??

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RESOURCES

Federal-Aid Program Administration LPA Website http://www.fhwa.dot.gov/federalaid/lpa/index.cfm Sample Title VI/Nondiscrimination Plan and

Nondiscrimination Agreement (WSDoT) http://www.wsdot.wa.gov/publications/manuals/fulltext/M36-63/Lag28.pdf

DOJ Title VI Manual http://www.justice.gov/crt/about/cor/coord/vimanual.

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THE END

THANK YOU!!