oregon department of transportation 2016 availability and disparity … · 2020-01-23 · 2016,odot...

OREGON DEPARTMENT OF TRANSPORTATION 2016 AVAILABILITY AND DISPARITY STUDY

Final Report June 2016 Prepared for:

Oregon Department of Transportation 355 Capitol Street NE, MS 11 Salem, OR 97301-3871

Prepared by:

Keen Independent Research LLC 100 Fillmore Street, 5th Floor Denver CO 80206 303-385-8515 928-684-3021 (fax) www.keenindependent.com [email protected]

http://www.keenindependent.com/mailto:[email protected]

KEEN INDEPENDENT 2016 ODOT DISPARITY STUDY TABLE OF CONTENTS, I

TABLE OF CONTENTS

EXECUTIVE SUMMARY. ODOT 2016 DISPARITY STUDY

A. Background .................................................................................................................... ES-2 B. Disparity Study Research Activities ............................................................................... ES-2 C. Availability Results and Base Figure for ODOT Overall DBE Goal .................................. ES-4 D. Potential Adjustments to Calculate the Overall DBE Goal ............................................. ES-7 E. Information to Project the Portion of the Overall Goal to be Met through

Neutral Means ............................................................................................................... ES-7 F. Quantitative and Qualitative Information for the Oregon Marketplace ....................... ES-9 G. Disparity Analysis for ODOT Contracts ........................................................................ ES-10 H. Recommendations ....................................................................................................... ES-13 I. Next Steps in the Disparity Study Process ................................................................... ES-14

CHAPTER 1. INTRODUCTION

A. Study team ....................................................................................................................... 1-2 B. Federal DBE Program ....................................................................................................... 1-2 C. Oregon MWESB Program and Other Programs ............................................................... 1-5 D. Previous Disparity Analyses Regarding ODOT Contracts ................................................. 1-6 E. Analyses Performed in the 2016 Disparity Study and Location of Results ...................... 1-6 F. Public Participation in the 2016 Disparity Study ............................................................. 1-9 G. Public Comment Process for the 2016 Disparity Study Report and ODOT DBE Goal .... 1-10

CHAPTER 2. LEGAL FRAMEWORK

A. The Federal DBE Program ................................................................................................ 2-3 B. State and Local MBE/WBE Programs in the United States .............................................. 2-5 C. Legal Standards that Race- and Gender-Conscious Programs Must Satisfy .................... 2-5

CHAPTER 3. ODOT TRANSPORTATION CONTRACTS

A. Overview of ODOT Transportation Contracts .................................................................. 3-1 B. Collection and Analysis of ODOT Contract Data .............................................................. 3-3 C. Types of Work Involved in ODOT Contracts .................................................................... 3-5 D. Location of Businesses Performing ODOT Work ............................................................. 3-8

KEEN INDEPENDENT 2016 ODOT DISPARITY STUDY TABLE OF CONTENTS, II

CHAPTER 4. ODOT OPERATION OF THE FEDERAL DBE PROGRAM

A. Setting an Overall Annual DBE Goal – 49 CFR Section 26.45 ........................................... 4-1 B. Role of Race- and Gender-Neutral Measures in Meeting the Goal ................................. 4-2 C. Types of Race- and Gender-Neutral Measures ................................................................ 4-3 D. Use of Any Race- and Gender-Conscious Measures ...................................................... 4-12 E. Statements, Reporting and Recordkeeping ................................................................... 4-19 F. Summary ........................................................................................................................ 4-20

CHAPTER 5. MARKETPLACE CONDITIONS

A. Historical Context in Oregon ........................................................................................... 5-2 B. Entry and Advancement .................................................................................................. 5-5 C. Business Ownership ......................................................................................................... 5-7 D. Access to Capital, Bonding and Insurance ....................................................................... 5-9 E. Success of Businesses .................................................................................................... 5-15 F. Summary ........................................................................................................................ 5-21

CHAPTER 6. AVAILABILITY ANALYSIS

A. Purpose of the Availability Analysis ................................................................................. 6-1 B. Definitions of MBEs, WBEs, Certified DBEs, Potential DBEs and

Majority-owned Businesses ............................................................................................. 6-2 C. Information Collected about Potentially Available Businesses ....................................... 6-5 D. Businesses Included in the Availability Database ............................................................ 6-8 E. MBE/WBE Availability Calculations on a Contract-by-Contract Basis ............................. 6-9 F. Availability Results ......................................................................................................... 6-12 G. Base Figure for ODOT’s Overall DBE Goal for FHWA-funded Contracts ........................ 6-13

CHAPTER 7. UTILIZATION AND DISPARITY ANALYSIS

A. Overview of the Utilization Analysis ................................................................................ 7-1 B. Overall MBE/WBE and DBE Utilization on ODOT Contracts ............................................ 7-4 C. Utilization by Racial, Ethnic and Gender Group .............................................................. 7-6 D. Disparity Analysis for ODOT Contracts .......................................................................... 7-10 E. Statistical Significance of Disparity Analysis Results ...................................................... 7-17

KEEN INDEPENDENT 2016 ODOT DISPARITY STUDY TABLE OF CONTENTS, III

CHAPTER 8. FURTHER EXPLORATION OF MBE/WBE AND DBE UTILIZATION ON FHWA- AND STATE-FUNDED CONTRACTS

A. Contracts With and Without DBE Contract Goals ........................................................... 8-1 B. Construction and Engineering Contracts ......................................................................... 8-2 C. ODOT Contracts and Local Public Agency (LPA) Contracts .............................................. 8-3 D. ODOT Regions .................................................................................................................. 8-4 E. Prime Contracts and Subcontracts .................................................................................. 8-5 F. Analysis of Potential Barriers to MBE/WBE/DBE Participation in ODOT

Construction Contracts .................................................................................................... 8-6 G. Analysis of Potential Barriers to MBE/WBE/DBE Participation in ODOT

Engineering-related Prime Contracts ............................................................................ 8-12 H. ODOT Operation of the Federal DBE Program, including Overconcentration

Analysis .......................................................................................................................... 8-16 I. Summary from Further Exploration of MBE/WBE and DBE Utilization ......................... 8-23

CHAPTER 9. OVERALL ANNUAL DBE GOAL

A. Establishing a Base Figure ................................................................................................ 9-1 B. Consideration of a Step 2 Adjustment ............................................................................. 9-2

CHAPTER 10. PORTION OF DBE GOAL FOR FHWA-FUNDED CONTRACTS TO BE MET THROUGH NEUTRAL MEANS

A. Is there evidence of discrimination within the local transportation contracting marketplace for any racial, ethnic or gender groups? ................................................... 10-3

B. What has been the agency’s past experience in meeting its overall DBE goal? ............ 10-5 C. What has DBE participation been when ODOT has not applied DBE contract goals

(or other race-conscious remedies)? ............................................................................. 10-6 D. What is the extent and effectiveness of race- and gender-neutral measures that

the agency could have in place for the next fiscal year? .............................................. 10-7 E. Summary ........................................................................................................................ 10-8

CHAPTER 11. RECOMMENDATIONS

1. Openness ....................................................................................................................... 11-2 2. Simplicity ....................................................................................................................... 11-4 3. Fairness .......................................................................................................................... 11-5 4. Transparency ................................................................................................................. 11-9 5. Impact ............................................................................................................................ 11-9 6. Monitored and improving ........................................................................................... 11-13

Summary ...................................................................................................................... 11-16

KEEN INDEPENDENT 2016 ODOT DISPARITY STUDY TABLE OF CONTENTS, IV

APPENDIX A. DEFINITION OF TERMS ........................................................................................... A-1

APPENDIX B. LEGAL FRAMEWORK AND ANALYSIS

A. Introduction ..................................................................................................................... B-1 B. U.S. Supreme Court Cases ............................................................................................... B-4 C. The Legal Framework Applied to the Federal DBE Program and State and Local

Government MBE/WBE Programs ................................................................................... B-7 D. Recent Decisions Involving the Federal DBE Program and State or Local

Government MBE/WBE Programs in the Ninth Circuit ................................................. B-29 E. Recent Decisions Involving the Federal DBE Program and its Implementation in

Other Jurisdictions ......................................................................................................... B-61 F. Recent Decisions Involving State or Local Government MBE/WBE Programs in

Other Jurisdictions .......................................................................................................B-116 G. Recent Decisions and Authorities Involving Federal Procurement that May Impact

DBE and MBE/WBE Programs ......................................................................................B-189

APPENDIX C. CONTRACT DATA COLLECTION

A. ODOT Contract and Agreement Data .............................................................................. C-1 B. Local Certification Program Contract Data ...................................................................... C-3 C. ODOT Bid and Proposal Data ........................................................................................... C-4 D. Characteristics of Utilized Firms and Bidders .................................................................. C-4 E. ODOT and External Stakeholder Review ......................................................................... C-4 F. Data Limitation ................................................................................................................ C-5

APPENDIX D. GENERAL APPROACH TO AVAILABILITY ANALYSIS

A. General Approach to Collecting Detailed Availability Information ................................ D-1 B. Development of the Survey Instruments ....................................................................... D-6 C. Execution of Surveys ....................................................................................................... D-8 D. Additional Considerations Related to Measuring Availability ...................................... D-11 E. ODOT Disparity Study — Standard Availability Survey Instrument .............................. D-15

APPENDIX E. ENTRY AND ADVANCEMENT IN THE OREGON CONSTRUCTION AND ENGINEERING INDUSTRIES

A. Introduction ..................................................................................................................... E-1 B. Construction Industry ...................................................................................................... E-4 C. Engineering Industry ...................................................................................................... E-17 D. Summary ........................................................................................................................ E-22

KEEN INDEPENDENT 2016 ODOT DISPARITY STUDY TABLE OF CONTENTS, V

APPENDIX F. BUSINESS OWNERSHIP IN THE OREGON CONSTRUCTION AND ENGINEERING INDUSTRIES

A. Business Ownership Rates ............................................................................................... F-1 B. Business Ownership Regression Analysis ........................................................................ F-6 C. Summary of Business Ownership in the Construction and Engineering Industries ....... F-12

APPENDIX G. ACCESS TO CAPITAL FOR BUSINESS FORMATION AND SUCCESS

A. Homeownership and Mortgage Lending ........................................................................ G-2 B. Access to Business Capital ............................................................................................ G-14 C. Bonding and Insurance ................................................................................................. G-31 D. Summary ....................................................................................................................... G-33

APPENDIX H. SUCCESS OF BUSINESSES IN THE OREGON CONSTRUCTION AND ENGINEERING INDUSTRIES

A. Participation in Public and Private Sector Markets ........................................................ H-2 B. Relative Bid Capacity ..................................................................................................... H-6 C. Business Closures, Expansions and Contractions .......................................................... H-9 D. Business Receipts and Earnings ................................................................................... H-15 E. Availability Survey Results Concerning Potential Barriers ........................................... H-24

APPENDIX I. DESCRIPTION OF DATA SOURCES FOR MARKETPLACE ANALYSES

A. IPUMS Data ....................................................................................................................... I-1 B. Survey of Small Business Finances (SSBF) ......................................................................... I-9 C. Survey of Business Owners (SBO) ................................................................................... I-11 D. Home Mortgage Disclosure Act (HMDA) Data ............................................................... I-12

APPENDIX J. QUALITATIVE INFORMATION FROM IN-DEPTH PERSONAL INTERVIEWS, TELEPHONE INTERVIEWS, PUBLIC MEETINGS AND WRITTEN COMMENTS

A. Introduction and Background .......................................................................................... J-2 B. Background on the Businesses in Oregon ....................................................................... J-6 C. Economic Conditions Affecting the Transportation Contracting Industry in Oregon .... J-20 D. Public and Private Sector Transportation Contracting in Oregon ................................. J-28 E. Doing Business as a Prime Contractor or as a Subcontractor ........................................ J-38 F. Keys to Business Success and Any Barriers in the Way ................................................. J-48 G. Experience Doing Business with Public Agencies Including Oregon Department

of Transportation ........................................................................................................... J-64 H. Allegations of Unfair Treatment .................................................................................... J-99 I. Information Regarding any Racial-, Ethnic- or Gender-based Discrimination ............. J-105 J. Insights Regarding Business Assistance Programs, Changes in Contracting

Processes or Any Other Neutral Measures .................................................................. J-120

KEEN INDEPENDENT 2016 ODOT DISPARITY STUDY TABLE OF CONTENTS, VI

K. Insights Regarding DBE/MWESB Programs and Other Related Race- and Gender-based Measures ............................................................................................. J-150

L. DBE and MWESB Certification ..................................................................................... J-170 M. Any Other Insights and Recommendations for ODOT ................................................. J-178

KEEN INDEPENDENT 2016 ODOT DISPARITY STUDY EXECUTIVE SUMMARY, PAGE 1

EXECUTIVE SUMMARY. ODOT 2016 Disparity Study

The Oregon Department of Transportation (ODOT) is required to implement the Federal Disadvantaged Business Enterprise (DBE) Program as a condition of receiving funding from the U.S. Department of Transportation (USDOT). ODOT’s operation of the Federal DBE Program is guided by federal regulations and instructions from USDOT.

ODOT has periodically conducted disparity studies since 2007 to analyze whether there is a level playing field for minority- and women-owned firms in the Oregon transportation contracting industry. The information collected through these studies helps ODOT operate the Federal DBE Program in compliance with Title 49 Code of Federal Regulations (CFR) Part 26, USDOT guidance and Ninth Circuit case law. ODOT’s last disparity study was completed in 2011.

In late 2014 ODOT engaged a team led by Keen Independent Research LLC (Keen Independent) to prepare the 2016 Disparity Study, which examines the relative availability and participation of minority- and women-owned firms in ODOT’s contracts from October 2010 through September 2014. The disparity study also analyzes conditions for minorities, women, and minority- and women-owned firms within the Oregon marketplace. Finally, the study identifies recommendations and specific steps that may be taken to encourage utilization of all small businesses in ODOT contracting as well as programs specific to DBEs.

Information from the 2016 Disparity Study will assist ODOT with the following:

Setting an overall annual goal for DBE participation in its contracts funded by the Federal Highway Administration (FHWA) for federal fiscal years 2017 through 2019;

Evaluating whether it can attain its overall DBE goal solely through neutral measures, or whether race- or gender-conscious measures are also needed; and

Determining the specific race, ethnic and gender groups that may be eligible for any race- or gender-conscious program elements, such as DBE contract goals.

This Executive Summary includes:

A. Background; B. Disparity Study research activities; C. Availability results and base figure for the overall DBE goal; D. Potential adjustments to calculate ODOT’s overall DBE goal; E. Information to project the portion of the overall goal to be met through neutral means; F. Quantitative and qualitative information for the Oregon marketplace; G. Disparity analysis for ODOT contracts; H. Recommendations; and I. Next steps in the Disparity Study process.


A. Background

For federal fiscal years (FFYs) 2015 and 2016, ODOT’s overall goal for DBE participation on its FHWA-funded contracts is 13.1 percent. The agency is attempting to meet that goal through a combination of neutral and race- and gender-conscious measures.

ODOT must implement the Federal DBE Program in light of the pivotal 2005 Ninth Circuit Court of Appeals decision in Western States Paving Co. v. Washington State DOT. The Court upheld the constitutionality of the Federal DBE Program, but found that Washington State DOT failed to show its implementation of the Federal DBE Program was narrowly tailored.

In response to the Western States Paving decision and per USDOT guidance, state and local agencies affected by the decision, including ODOT, suspended use of race- and gender-conscious program elements such as setting goals for DBE participation on federally-funded contracts. USDOT recommended that agencies conduct disparity studies to determine how they might narrowly tailor the Federal DBE Program to their local industries. ODOT completed a disparity study in 2007 and, based on the results, began setting DBE contract goals again in FFY 2008 for its construction contracts. However, as a result of the study findings, only a subset of DBE groups was eligible to meet contract goals. ODOT completed an update report in 2011 and, based on the results, continued setting DBE goals on construction contracts and reinstated setting goals on architectural and engineering and related services contracts. Again, only a subset of DBE groups was eligible to meet contract goals.

A 2013 Ninth Circuit decision regarding operation of the Federal DBE Program by the California Department of Transportation (Caltrans) provides further direction on agency implementation of the program. Leaders of the Keen Independent team directed the 2007 Caltrans disparity study and helped to defend Caltrans when a contractors association challenged its operation of the Federal DBE Program. The Ninth Circuit favorably reviewed the methodology and information provided in the disparity study and determined that the information supported Caltrans’ operation of the Federal DBE Program. Keen Independent applied a methodology in the 2016 Disparity Study for ODOT that is very similar to what the Court favorably reviewed in the Caltrans case.

B. Disparity Study Research Activities

Keen Independent began the Disparity Study in November 2014. The study team includes Holland & Knight, a law firm; local subconsultants JLA Public Involvement, Benetti Partners, Donaldson Enterprises, Merina & Company and Customer Research International, a survey firm.

Stakeholder engagement and other public input. Throughout the study, the study team consulted with an External Stakeholder Group that included representatives from DBE-certified firms, other businesses, industry associations, other public agencies and FHWA. The team set up a study website, dedicated email address, and a telephone hotline, and both ODOT and the study team conducted extensive communications with the public from the beginning of the study. This included requests for public input and public meetings held at the start of the study in 2015 and in upon release of a draft report to the public in spring 2016. Also, ODOT and the External Stakeholder Group reviewed the race, ethnicity, and gender contractor data together before Keen Independent completed the disparity analysis.


Data collection and review. The study team collected information about FHWA- and state-funded contracts awarded by ODOT or by local agencies from October 2010 through September 2014. The contract data included 8,027 prime contracts and subcontracts totaling $1.9 billion.

Utilization analysis. Keen Independent identified the race, ethnicity and gender ownership of companies receiving ODOT prime contracts or subcontracts through a combination of sources, including telephone interviews with those firms. The team then calculated the value of the contracts and subcontracts awarded to each contractor, or the contractor’s “utilization.” The utilization analysis then examined the value of contracts awarded to minority-owned firms (by race and ethnicity), white women-owned firms and majority-owned firms (firms that are not minority- or women-owned).

Relevant market area determination. Because 88 percent of ODOT contract dollars during the study period went to firms located in Oregon or the two Washington counties within the Portland Metropolitan Area, the study team defined Oregon and Southwest Washington as the study area. Keen Independent examined quantitative and qualitative information about the statewide transportation contracting industry gathered through survey research, secondary data and in-depth interviews with representatives of 71 companies, trade associations and other public agencies throughout the state.

Benchmark availability determination. The study team completed telephone surveys with thousands of businesses to determine the benchmark availability of different types of businesses for individual ODOT prime contracts and subcontracts. The availability analysis also examined the size and location of prime contracts and subcontracts when determining a firm’s availability for specific ODOT contracts.

Contracting disparity analysis. The study team then compared the percentage of contract dollars going to minority-, white women, and majority-owned firms to the benchmark availability for each group.

Overall DBE goal calculations. Finally, Keen Independent prepared analyses that would help ODOT set an overall goal for DBE participation on FHWA-funded contracts, project the portion to be met through neutral means, and determine which groups of DBEs might be eligible for any race- and gender-conscious programs such as DBE contract goals.

The full Disparity Study report is more than 700 pages in length and provides a complete discussion of methodology and study information. The following briefly summarizes results.


C. Availability Results and Base Figure for ODOT Overall DBE Goal

Keen Independent compiled information about the availability of minority- and white women-owned firms (MBEs and WBEs, regardless of certification status) and majority-owned firms (firms with less than 51 percent minority or women ownership) for work in ODOT transportation contracts. The study team used this information to establish availability benchmarks for MBE and WBE utilization that could be compared with actual MBE and WBE utilization observed for ODOT contracts.

The study team also used availability analyses as inputs to the overall DBE goal for FHWA-funded contracts. Keen Independent calculated the overall goal based on firms currently certified as DBEs (“current DBEs”) and those minority- and women-owned firms that potentially could be certified as DBEs (“potential DBEs”). Not all MBE/WBEs are current or potential DBEs, as explained below.

Database of firms available for ODOT contracts. Keen Independent created a master availability database that contains detailed information from businesses about the types, sizes and locations of the highway construction and engineering-related work they perform. The study team surveyed firms that had expressed interest in ODOT work or operated in fields related to highway construction and engineering. The study team’s final availability database included 1,639 businesses with qualifications and interest in specific types of ODOT and local agency transportation contracting. Of those 1,639 businesses, 446 (27%) were minority- or women-owned.

Figure ES-1 shows the number of businesses by ownership in the availability database for this study. Because results are a simple headcount of firms with no analysis of availability for specific ODOT contracts, they only reflect the first step in the availability analysis.

Figure ES-1. Number of minority-, women- and majority-owned businesses included in the availability database

Note:

Numbers rounded to nearest tenth of 1 percent. Percentages may not add to totals due to rounding.

Source:

Keen Independent availability analysis.

Dollar-weighted availability. For each of the availability analyses prepared for this study, Keen Independent developed dollar-weighted availability benchmarks:

The study team identified specific characteristics of each of the 8,027 prime contracts and subcontracts included in the set of contracts being analyzed.

Race/ethnicity and gender

African American-owned 38 2.3 %Asian-Pacific American-owned 27 1.6Subcontinent Asian American-owned 15 0.9Hispanic American-owned 57 3.5Native American-owned 35 2.1 Total MBE 172 10.5 %

WBE (white women-owned) 274 16.7 Total MBE/WBE 446 27.2 %

Total majority-owned firms 1,193 72.8 Total firms 1,639 100.0 %

Number of firms

Percent of firms


For each prime contract and subcontract, Keen Independent identified the businesses in the detailed availability database that indicated that they performed the type, size and location of work pertinent to that prime contract or subcontract. After the available firms for a prime contract or subcontract were identified, the study team calculated the percentage of available firms that were minority-owned (by group), white women-owned and majority-owned.

Once Keen Independent had calculated availability for 8,027 individual prime contracts and subcontracts, the study team developed aggregate availability results across all prime contracts and subcontracts. The first step to aggregating results was to determine dollar weights for the availability figures for each prime contract and subcontract. Keen Independent calculated weights by dividing the value of that prime contract or subcontract by the total dollars of all the contracts ($1.9 billion when examining all contracts). After applying the weights to the results of the availability analysis for each prime contract and subcontract, Keen Independent added the results to calculate overall availability estimates for WBEs and each MBE group for the entire set of contracts.

Including all 8,027 prime contracts and subcontracts, dollar-weighted MBE/WBE availability was 19.24 percent. In other words, if there were a level playing field for firms available for ODOT work, MBE/WBEs might be expected to receive 19.24 percent of ODOT transportation contract dollars. This dollar-weighted availability was lower than the proportion of firms in the availability database that were MBE/WBEs (27%) because minority- and women-owned firms comprised a smaller portion of firms available for large highway construction prime contracts than for specialty trade prime contracts or subcontracts. Figure ES-2 presents dollar-weighted availability results for FHWA-funded, state-funded and all contracts combined.

Figure ES-2. Overall dollar-weighted availability estimates for MBE/WBEs for ODOT FHWA- and state-funded contracts, October 2010–September 2014

Note: Numbers may not add to totals due to rounding.

Source: Keen Independent availability analysis.

Race/ethnicity and gender

African American-owned 2.92 % 2.59 % 2.86 %Asian-Pacific American-owned 0.83 1.04 0.86 Subcontinent Asian American-owned 0.62 0.81 0.66 Hispanic American-owned 2.31 2.09 2.27 Native American-owned 2.78 2.34 2.71 Total MBE 9.47 % 8.86 % 9.37 %

WBE (white women-owned) 9.82 10.15 9.88 Total MBE/WBE 19.29 % 19.01 % 19.24 %

FHWA State Total


Converting MBE/WBE availability to identify current and potential DBEs for the base figure. Figure ES-3 provides the calculations to separately identify current and “potential” DBE availability from the 19.29 percent MBE/WBE availability figure for FHWA-funded contracts shown in Figure ES-2. There were three groups of MBE/WBEs that Keen Independent did not count as current/potential DBEs when calculating the base figure:

Graduated or been denied DBE certification. Keen Independent did not include MBE/WBEs that in recent years graduated from the DBE Program or had applied for DBE certification in Oregon and had been denied (based on information supplied by ODOT’s Office of Civil Rights). This was three firms.

Revenue exceeding DBE size limits. The study team did not count MBE/WBEs with average annual revenue that exceeded the revenue limits for DBE certification for their subindustry. This was 18 firms.

Ineligible for public contracts. Also excluded were MBE/WBEs in the availability surveys that are prohibited from work for any portion of the FFY 2017-FFY 2019 time period based on their inclusion on the Oregon Bureau of Labor and Industries (BOLI) List of Contractors Ineligible to Received Public Works Contracts (as of November 2, 2015). This was one firm.

Adjusting for these three categories of MBE/WBEs reduces the base figure for FHWA-funded contracts by 3.45 percentage points. The base figure for ODOT’s overall DBE goal is 15.84 percent. It represents the level of current/potential DBE participation anticipated based on analysis of FHWA-funded contracts from October 2010 through September 2014.

Assuming ODOT’s mix of future FHWA-funded contracts is expected to be similar to FHWA-funded contracts from October 2010 through September 2014, Keen Independent recommends that ODOT use the 15.84 percent current/potential DBE availability figure as the “base figure” when determining its overall DBE goal for FFY 2017 through FFY 2019.

Figure ES-3. Overall dollar-weighted availability estimates for current and potential DBEs for FHWA-funded contracts, October 2010–September 2014

Note: Numbers may not add to totals due to rounding.

Source: Keen Independent availability analysis.

Calculation of base figure FHWA

Total MBE/WBE 19.29 %

Less firms that graduated from the DBE Program or denied DBE certification in recent years or exceed revenue thresholds or on BOLI list 3.45

Subtotal 15.84 %

Plus white male-owned DBEs --

Current and potential DBEs 15.84 %


For purposes of comparison, Keen Independent also performed dollar-weighted availability calculations for currently-certified DBEs. The dollar-weighted availability of current DBEs is 6.00 percent.

D. Potential Adjustments to Calculate the Overall DBE Goal

Per the Federal DBE Program, ODOT must consider potential adjustments to the base figure as part of determining its overall annual DBE goal for FHWA-funded contracts. The Federal DBE Program outlines factors that an agency must consider when assessing whether to make any adjustments to its base figure:

1. Current capacity of DBEs to perform work, as measured by the volume of work DBEs have performed in recent years;

2. Information related to employment, self-employment, education, training, and unions; 3. Any disparities in the ability of DBEs to get financing, bonding and insurance; and 4. Other relevant factors.

If ODOT makes a downward step 2 adjustment reflecting current capacity to perform work, its overall DBE goal for FHWA-funded contracts might be 11.63 percent. If ODOT decides to not make a downward adjustment and to make an upward adjustment that reflects analyses of business ownership rates, its overall DBE goal might be 21.31 percent. ODOT might also choose to not make a step 2 adjustment, which would mean a DBE goal of 15.84 percent. Figure ES-4 summarizes this information and Chapter 9 further explains these calculations.

Figure ES-4. Potential step 2 adjustments to overall DBE goal for FHWA-funded contracts, FFY 2017–FFY 2019

Note:

For further explanation see Chapter 9.

E. Information to Project the Portion of the Overall Goal to be Met through Neutral Means

The Federal DBE Program requires state and local transportation agencies to meet the maximum feasible portion of their overall DBE goals using race- and gender-neutral measures.1 Race- and gender-neutral measures are initiatives that encourage the participation of all businesses, or all small

1 49 CFR Section 26.51.

Downward step 2 adjustment Base figure Upward step 2 adjustment0%

5%

10%

15%

20%

25%

30%

11.63%

15.84%

15.8%

21.31%

21.3%

100%

(past participation) ("but for" analysis)


businesses, and are not specifically limited to MBE/WBEs or DBEs. Agencies must determine whether they can meet their overall DBE goals solely through neutral means or whether race- and gender-conscious measures — such as DBE contract goals — are also needed. As part of doing so, agencies must project the portion of their overall DBE goals that they expect to meet (a) through race- and gender-neutral means, and (b) through race- and gender-conscious programs (if any).

If an agency determines that it can meet its overall DBE goal solely through race- and gender-neutral means, then it would propose using only neutral measures in its operation of the Federal DBE Program.

If an agency determines that a combination of race- and gender-neutral and race- and gender-conscious measures are needed to meet its overall DBE goal, then the agency would propose using a combination of neutral and conscious measures when operating the Federal DBE Program.

Projections of goal attainment through neutral means. USDOT offers guidance concerning how transportation agencies should make these projections. Using this information, Keen Independent analyzed different approaches ODOT could apply when making its projection for FFY 2017 through FFY 2019.

The most complete and accurate information about past DBE participation in a neutral environment comes from Keen Independent’s utilization analysis for contracts without DBE contract goals. ODOT achieved 5.0 percent DBE participation on ODOT contracts without DBE contract goals based on Keen Independent analysis of these contracts from October 2010 through September 2014.

Using this 5.0 percentage point projection for illustration, Figure ES-5 summarizes this analysis for three different examples of overall DBE goals that ODOT might select. In each column, the neutral projection (row 2) is subtracted from the overall DBE goal (row 1) to derive the race-conscious projection (row 3). The left-most column of results presents ODOT’s overall goal and neutral projection for the current time period (FFY 2015 through FFY 2016).

Figure ES-5. Current ODOT overall DBE goal and projections of race-neutral for FHWA-funded contracts for FFY 2014–FFY2016 and examples of overall goal and projections for FFY 2017 through FFY 2019

Source: Keen Independent analysis.

Component of overall DBE goal

Overall goal 13.10 % 11.63 % 15.84 % 21.31 %

Neutral projection - 7.90 - 5.00 - 5.00 - 5.00

Race-conscious projection 5.20 % 6.63 % 10.84 % 16.31 %

FFY 2017- FFY 2019Upward

adjustmentBase figureDownward adjustment

FFY 2015-FFY 2016


Determining whether there is evidence of discrimination. Before making the projection of neutral attainment and determining whether it will use DBE contract goals for any group, or which groups, ODOT must consider whether there is evidence of discrimination within the local transportation contracting marketplace for any racial, ethnic or gender groups.

In Western States Paving, the Ninth Circuit Court of Appeals held the recipient of federal funds must have independent evidence of discrimination within the recipient’s own transportation contracting marketplace in order to determine whether or not there is the need for race-, ethnicity-, or gender-conscious remedial action.2 In Western States Paving, and in AGC, SDC v. Caltrans, the Ninth Circuit Court found that even where evidence of discrimination is present in a recipient’s market, a narrowly tailored program must apply only to those minority groups that suffered discrimination. Thus, under a race- or ethnicity-conscious program, for each of the minority groups to be included in any race- or ethnicity-conscious elements in a recipient’s implementation of the Federal DBE Program, there must be evidence that the minority group suffered discrimination within the recipient’s marketplace.3

ODOT should review the results of this disparity study and other information it has when making this determination. The balance of this Executive Summary briefly outlines key information provided in the full report concerning quantitative and qualitative information for the Oregon marketplace; and results of the disparity analysis for ODOT contracts.

F. Quantitative and Qualitative Information for the Oregon Marketplace

As discussed in Chapter 5 of the report and in supporting appendices, there is quantitative and qualitative information indicating that there is not a level playing field for minorities and women, and minority- and women-owned businesses, in the Oregon transportation contracting industry.

Summary of quantitative information. From Keen Independent’s analysis of U.S. Bureau of the Census data, survey data and other information, there is quantitative information indicating disparities for certain minority groups and women regarding entry and advancement as employees within the industry, disparities in business ownership, disparities concerning access to capital and bonding, and certain disparities in success of minority- and women-owned firms. Also, relatively more minority- and women-owned firms report difficulties networking with prime contractors or customers based on survey data.

There was evidence of disparities in the Oregon marketplace affecting African American-, Asian-Pacific American-, Subcontinent Asian American-, Hispanic American- and Native American-owned firms as well as white women-owned firms. This includes evidence that there are fewer Hispanic American, Native American and female business owners in the Oregon construction industry than what might be expected given a level playing field.

2 Western States Paving, 407 F.3d at 997-98, 1002-03; see AGC, SDC v. Caltrans, 713 F.3d at 1197-1199. 3 407 F.3d at 996-1000; See AGC, SDC v. Caltrans, 713 F.3d at 1197-1199.


Summary of qualitative information. Based on in-depth interviews of business owners and others, telephone surveys, public meetings and other information, there was substantial evidence of barriers to new and small businesses in the Oregon transportation contracting industry. Owners and managers of small businesses reported that public agency contracting processes and requirements, such as minimum prequalification, bonding, and insurance levels, often put small businesses at a disadvantage when competing for public sector work.

Existing relationships are an important factor in finding opportunities to bid on work according to many prime contractors and subcontractors. There is also substantial evidence that a “good ol’ boy” network negatively affects opportunities for businesses including those owned by minorities and women.

From the in-depth interviews, availability interviews and other information analyzed as part of the study, there appeared to be difficulties for minorities and women beyond those associated with being a small business. This included evidence of:

Workplace conditions unfavorable to women and minorities in the Oregon construction industry;

Greater difficulties for women and minorities to obtain financing; Different treatment of minority- and women-owned firms by bonding companies; and Negative stereotypes concerning minority- and women-owned firms held by some

prime contractors and customers.

The combined quantitative and qualitative information indicate that there is not a level playing field for minorities, women and minority- and women-owned firms in the Oregon transportation contracting industry.

G. Disparity Analysis for ODOT Contracts

Keen Independent compared the share of ODOT contract dollars going to minority- and women-owned firms with what might be expected from the availability analysis. (Disparity analysis is properly done based on utilization and availability of all MBE/WBEs, not DBEs.)

Utilization. Considering all FHWA- and state-funded ODOT transportation construction and engineering contracts from October 2010 through September 2014, minority- and women-owned firms received $225 million out of the $1.9 billion in contract dollars, or 11.7 percent of total dollars. As shown in Figure ES-5:

About 5.1 percent of total dollars went to white women-owned firms and 6.5 percent went to minority-owned firms (including businesses owned by minority women).

Firms certified as DBEs received 7.1 percent of total dollars. About one-half of the MBE/WBE utilization was for firms not DBE-certified at the time of contract award. This included former DBEs that are now too large to be certified or have otherwise let their certifications expire or have withdrawn from the program.


Figure ES-6 also demonstrates the drop in MBE utilization between the first two years of the study period (FFY 2011 and FFY 2012) and the most recent two years (FFY 2013 and FFY 2014). Participation of DBEs was also much lower in the FFY 2013 and FFY 2014.

Figure ES-6. MBE/WBE and DBE share of prime contract/subcontract dollars for ODOT FHWA- and state-funded transportation contracts, October 2010–September 2014 Note:

Numbers rounded to nearest tenth of 1 percent. Percentages may not add to totals due to rounding.

Source:

Keen Independent availability analysis.

Disparity analysis. To conduct the disparity analysis, Keen Independent compared the actual utilization of MBE/WBEs on ODOT contracts with the percentage of contract dollars that MBEs and WBEs might be expected to receive based on their availability for that work. Keen Independent made those comparisons for MBEs, WBEs and individual MBE groups.

White women-owned firms received 5.1 percent of ODOT contract dollars (FHWA- and state-funded combined). This utilization was below what might be expected from the availability analysis — 9.9 percent. Minority-owned firms received 6.5 percent of ODOT contract dollars, a result that was also below what might be expected from the availability analysis — 9.4 percent. Figure ES-7shows these results.

Figure ES-7. MBE/WBE utilization and availability for ODOT FHWA- and state-funded contracts, October 2010–September 2014

Note:

Number of contracts/subcontracts analyzed is 8,027.

Source:

Keen Independent disparity analysis for ODOT and LPA contracts.

Calculation of disparity indices. Keen Independent then calculated a “disparity index” to help compare utilization and availability results among MBE/WBE groups and across different sets of contracts. A disparity index of “100” indicates “parity,” or an exact match between actual utilization and what might be expected based on MBE/WBE availability for a specific set of contracts. A

Group

MBE 8.4 % 5.0 % 6.5 %WBE 5.2 5.0 5.1Total MBE/WBE 13.6 % 10.0 % 11.7 %

DBE 8.7 % 5.7 % 7.1 %

FFY 2011 - FFY 2012

FFY 2013 - FFY 2014 Total

Utilization Availability Utilization Availability0%

5%

10%

15%

20%

25%

30%

5.1%

9.9%

6.5%

9.4%

100%

MBEWBE


disparity index of less than 100 may indicate a disparity between utilization and availability, and disparity indices of less than 80 in this report are described as “substantial” based on relevant court decisions.

The resulting disparity indices for ODOT contracts were:

51 for WBEs (5.1% divided by 9.9%, multiplied by 100); and 69 for MBEs (6.5% divided by 9.4%, multiplied by 100).

Because the indices for WBEs and for MBEs were below 80, they are “substantial.”

In addition to the above results for white women-owned firms and MBEs overall, utilization was below the availability benchmarks for the following MBE groups for the October 2010 through September 2014 study period:

African American-owned firms received 1.7 percent of contract dollars, substantially less than what might be expected in the availability analysis (2.9%). The disparity index for this group was 58. Keen Independent identified this substantial disparity for African American-owned firms even with DBE-certified African American-owned businesses being eligible to participate in ODOT’s DBE goals for construction contracts.

Utilization of Asian-Pacific American-owned firms (0.6%) was substantially below what might be expected from the availability analysis (0.9%), and the disparity index was 69 for this group even though DBEs owned by Asian-Pacific Americans were eligible to meet DBE contract goals in the first two years of the study period.

Utilization of Subcontinent Asian-owned (0.6%) was somewhat less than expected from the availability analysis (0.7%). The disparity index for this group was 90, indicating a disparity even though Subcontinent Asian American-owned firms were eligible to meet DBE contract goals for construction contracts during the study period. (There was less than 0.2 percent participation of Subcontinent Asian American-owned firms for contracts without goals, with a disparity index of 24 for those contracts.)

Native American-owned firms had a utilization of 1.3 percent, below what might be expected based on the availability analysis (2.7%). The disparity index for this group was 49.

From October 2010 through September 2014, Hispanic American-owned firms obtained 2.4 percent of ODOT contract dollars, higher than what might be expected from the availability analysis (2.3%), resulting in a disparity index of 104. Most of this utilization was two firms: Capital Concrete Construction and LaDuke Construction. The availability results for Hispanic American-owned firms are limited by the fact that neither of these firms provided information to be included in the detailed availability analysis. Capital Concrete has voluntarily surrendered its contractor’s license, no longer has a working telephone number and does not appear to be available for ODOT work. LaDuke Construction indicated that they were not interested in discussing future work for ODOT when contacted by the study team to participate in an availability interview in 2015. Even though neither


firm provided information necessary to be included in the availability analysis for Hispanic American-owned firms, both of these firms are still counted in the utilization results. (Without these two firms, utilization of Hispanic American-owned firms would have been 0.9 percent, a substantial disparity.)

Keen Independent also examined utilization and availability for Hispanic American-owned firms for the most recent two years of the study period; October 2012 through September 2014. There was a large drop in utilization of Hispanic American-owned firms in this time period, with utilization of Hispanic American-owned firms (1.2%) substantially less than availability for that time period (2.1%), resulting in a disparity index of 59. These most recent results indicate the need for a race-conscious remedy for Hispanic American-owned firms, especially given apparent changes in the operations of the two firms that accounted for most of the contract dollars for this group.

Statistical significance of disparities. Keen Independent also examined whether the disparities for MBEs and for WBEs could be replicated simply through “chance” in award of prime contracts and subcontracts to available firms. The study team determined that the disparities for MBEs and for WBEs are statistically significant and cannot be reasonably replicated by chance.

Other disparity analyses. Keen Independent analyzed the utilization and availability of minority- and women-owned firms for additional subsets of ODOT prime contracts and subcontracts. The study team identified a pattern of disparities in the utilization of MBE/WBEs across different subsets of ODOT contracts, including by contract type and by region.

H. Recommendations

Study team recommendations emerged from the quantitative and qualitative results of the disparity study, especially the comments of many individuals inside and outside ODOT who provided input.

First, many of those providing input recognized ODOT’s past changes in contracting policies and practices that enhanced access for small businesses. Suggestions for further improvement, as well as Keen Independent’s assessment of results, tended to group around a set of desired outcomes regarding ODOT contracting and assistance programs. Simply put, ODOT can do more to ensure that its contracting and assistance is:

1. Open; 2. Simple; 3. Fair; 4. Transparent; 5. Impactful; and 6. Monitored and improving.

ODOT should continue top-to-bottom improvement regarding its contracting and its assistance programs.

Figure ES-8, on the following page, summarizes examples of initiatives ODOT might consider in pursuing these objectives. The initiatives are illustrative and by no means exhaustive. ODOT might find that some are not possible or effective after further review, or might be able to address the identified issue through another approach. Chapter 11 discusses these recommendations in detail.


Figure ES-8. Examples of potential ODOT initiatives under each objective

I. Next Steps in the Disparity Study Process

There is considerably more quantitative and qualitative information in the full report, which ODOT should review when making decisions about its future operation of the Federal DBE Program and other programs.

In March 2016, ODOT made this Executive Summary and the draft report available for public comment. ODOT also published its proposed overall DBE goal regarding FHWA-funded contracts. ODOT held public meetings in April 2016 to solicit input on both the draft report and DBE goal. Keen Independent augmented the report with public input regarding the study before finalizing the ODOT 2016 Disparity Study report. Information about this process can be found at www.ODOTDBEstudy.org. ODOT should review the final report and public comments before submitting its final DBE goal to FHWA for its consideration and approval.

Objectives and recommendations

1. Openness

a. Continue outreach to potential bidders, proposers, subcontractors and suppliers

b. Disseminate information through an electronic newsletter

c. Provide real-time training and assistance on how to win and perform work on ODOT projects

2. Simplicity

a. Simplify learning about, bidding on and performing ODOT work, especially small contracts

b. Increase number of certified DBEs through targeted outreach and certification assistance

3. Fairness

a. Review how firm qualifications are assessed in construction and A&E contract awards

b. Implement payment notification service for subcontractors and subconsultants

c. Explore initiatives to limit opportunities for bid shopping and other unfair contracting practices

d. Research other ways to improve treatment of subcontractors on ODOT contractse. Continue support for apprenticeships and other programs to promote entry and advancement

4. Transparency

a. Expand awareness of construction contract award information

b. Provide comprehensive information about consultant contract awards, including subcontractors

5. Impact

a. Continue partnerships to provide general business assistance

b. Build stronger DBEs and other small businesses within core transportation contracting disciplines

c. Consider an ESB contract goals program for state-funded contracts

d. Pursue changes in state law to allow expansion of Small Contracting Program and ESB/SBE Programs

e. Consider including each DBE group as eligible for DBE contract goals program

6. Monitored and improving

a. Expand data collection and reporting including a comprehensive business contact list

b. Continue to use external stakeholder groups that include DBEs and ESBs

c. Plan future disparity studies

http://www.odotdbestudy.org/

KEEN INDEPENDENT 2016 ODOT DISPARITY STUDY CHAPTER 1, PAGE 1

CHAPTER 1. Introduction

The federal government requires state and local governments to operate the Federal Disadvantaged Business Enterprise (DBE) Program if they receive U.S. Department of Transportation (USDOT) funds for transportation projects. The Oregon Department of Transportation (ODOT) has operated some version of the Federal DBE Program for many years.

Most of the USDOT funds that ODOT receives are for highway-related work from the Federal Highway Administration (FHWA), which is the focus of the 2016 Disparity Study. 1 ODOT must set an overall goal for participation of DBEs in its FHWA-funded contracts, expressed as the percentage of contract dollars that ODOT would expect to go to DBEs absent the effects of discrimination. ODOT’s next three-year overall DBE goal will begin October 1, 2016.

ODOT retained Keen Independent Research LLC (Keen Independent) to conduct the 2016 Disparity Study. This report is a draft and will be augmented based on further public input. ODOT is using information from this report to propose a three-year overall DBE goal for FHWA-funded contracts and to propose the measures it will use to meet that goal, which can be found at www.ODOTDBEstudy.org. ODOT received public comment on the 2016 Disparity Study draft report and its proposed overall DBE goal through April 30, 2016.

The balance of Chapter 1:

A. Introduces the study team; B. Provides background on the Federal DBE Program; C. Describes Oregon’s MWESB Program and other programs; D. Discusses previous disparity analyses regarding ODOT contracts; E. Outlines the analyses in the 2016 Disparity Study and describes where results appear in

the report; F. Summarizes the public participation process in the 2016 Disparity Study; and G. Provides information about the public comment process for the draft report and

ODOT’s proposed DBE goal, including five public meetings held in April 2016.

1 ODOT also receives a relatively small amount of funds from the Federal Transit Administration (FTA) and separately sets an overall DBE goal for those contracts. The Oregon Department of Aviation operates the Federal DBE Program for Federal Aviation Administration (FAA) funding that the State of Oregon receives.

http://www.odotdbestudy.org/


A. Study Team

David Keen, Principal of Keen Independent, directed this study. He has led similar studies for more than 90 public agencies throughout the country, including a number of state departments of transportation. Keith Wiener from Holland & Knight provided the legal framework for this study. Mr. Wiener has extensive experience with disparity studies as well, and has worked with Mr. Keen in this field since the early 1990s. Mr. Keen and Mr. Wiener have helped public agencies successfully defend DBE and minority business enterprise programs in court.

As shown in Figure 1-1, JLA Public Involvement, Benetti Partners and Donaldson Enterprises performed in-depth interviews and outreach as part of the study. Merina & Company conducted onsite contract data collection at ODOT offices. Customer Research International (CRI) performed telephone surveys with business owners and managers that identified firms available for ODOT contracts. These five team members are minority- and/or women-owned firms.

Keen Independent worked closely with ODOT staff, including senior leadership, throughout the study.

Figure 1-1. 2016 Disparity Study team

Firm

Location

Team Leader

Responsibilities

Keen Independent Research LLC, prime consultant

Denver CO Wickenburg, AZ

David Keen Principal

All study phases

Holland & Knight LLP (H&K) Atlanta, GA Keith Wiener Partner

Legal framework

JLA Public Involvement, Inc. Portland, OR Stacy Thomas Sr. Project Manager

In-depth interviews, public outreach

Benetti Partners LLC Portland, OR Juanita Walton Principal

In-depth interviews

Donaldson Enterprises Consulting Washougal, WA Suzanne Donaldson Principal

In-depth interviews

Customer Research International (CRI)

San Marcos, TX Sanjay Vrudhula President

Availability telephone interviews

Merina & Company LLP West Linn, OR Kamala Austin Partner

Data collection

B. Federal DBE Program

ODOT has been operating some version of a Federal DBE Program since the 1980s. After enactment of the Transportation Equity Act for the 21st Century (TEA-21) in 1998, USDOT established a new Federal DBE Program to be operated by state and local agencies receiving USDOT funds. USDOT recently revised the Federal DBE Program in 2011 and again in 2014.


Federal regulations located at Title 49 Code of Federal Regulations (CFR) Part 26 direct how state and local governments must operate the Federal DBE Program.2 If necessary, the Program allows state and local agencies to use DBE contract goals, which ODOT currently sets on certain FHWA-funded contracts. When awarding those contracts, ODOT considers whether or not a bidder or proposer meets the DBE goal set for a contract or has shown adequate good faith efforts to do so.

The Federal DBE Program also applies to cities, towns, counties, transportation authorities, tribal governments and other jurisdictions that receive USDOT funds as a subrecipient of ODOT. When agencies such as TriMet and the Port of Portland directly receive USDOT funds, they are responsible for determining overall DBE goals and how they will implement the Federal DBE Program.

Key Program elements. The Federal DBE Program includes the following elements.

Setting an overall goal for DBE participation. Every three years, ODOT must develop an overall annual goal for DBE participation in its USDOT-funded contracts. The Federal DBE Program sets forth the steps an agency must follow in establishing its goal, including development of a “base figure” and consideration of possible “step 2” adjustments to the goal.3 For FHWA-funded contracts for the federal fiscal year (FFY) ending September 30, 2016, ODOT has a 13.10 percent overall DBE goal.

ODOT’s overall goal for DBE participation is aspirational. An agency’s failure to meet an annual DBE goal does not automatically cause any USDOT penalties unless that agency fails to administer the DBE Program in good faith. However, if an agency does not meet its overall DBE goal, federal regulations require it to analyze the reasons for any shortfall and develop a corrective action plan to meet the goal in the next fiscal year.4

Establishing the portion of the overall DBE goal to be met through neutral means. The Federal DBE Program allow for state and local governments to operate the program without the use or with limited use of race- or gender-based measures such as DBE contract goals. According to program regulations 49 CFR Section 26.51, a state or local agency must meet the maximum feasible portion of its overall goal for DBE participation through “race-neutral means.”

Race-neutral program measures include removing barriers to participation and promoting use of small businesses. The Federal DBE Program requires agencies such as ODOT to develop programs to assist small businesses.5 For example, small business preference programs, including reserving contracts on which only small businesses can bid, are allowable under the Federal DBE Program.

If an agency can meet its goal solely through race-neutral means, it must not use race-conscious program elements. The Federal DBE Program requires that an agency project the portion of its overall DBE goal that it will meet through neutral measures and the portion, if any, to be met through race-conscious measures such as DBE contract goals. USDOT has outlined a number of

2 49 CFR Part 26 http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title49/49cfr26_main_02.tpl. 3 49 CFR Section 26.45. 4 49 CFR Section 26.47. 5 49 CFR Section 26.39.


factors for an agency to consider when making that determination.6 Some state DOTs and other agencies operate a 100 percent race- and gender-neutral program and do not apply DBE contract goals. Other state DOTs project that they will meet their overall DBE goal through a combination of race-neutral and race-conscious measures.

The 2016 Disparity Study provides information for ODOT to make this projection (Chapter 10).

Determining whether all racial/ethnic/gender groups will be eligible for race- or gender-conscious elements of the Federal DBE Program. To be certified as a DBE, the firm’s owner must be both socially and economically disadvantaged. Under the Federal DBE Program, the following racial, ethnic and gender groups can be presumed to be socially disadvantaged:

Black Americans (or “African Americans” in this study); Hispanic Americans; Native Americans; Asian-Pacific Americans; Subcontinent Asian Americans; and Women of any race or ethnicity.

To be economically disadvantaged, a company must be below an overall revenue limit and an industry-specific limit, and its firm owner(s) must be below personal net worth limits.7 White male-owned firms and other ethnicities not listed above can also meet the federal certification requirements and be certified as DBEs if they demonstrate that they are both socially and economically disadvantaged, as described in 49 CFR Part 26.67(d).

ODOT’s current operation of the Program limits participation in the contract goals program to:

DBEs owned by African Americans and Subcontinent Asian Americans on construction contracts; and

All DBEs except those owned by Asian-Pacific Americans on engineering-related contracts.

Only DBEs in the above groups can count toward meeting an assigned DBE contract goal. Any DBE can currently participate in other aspects of the Federal DBE Program. ODOT counts utilization of other DBEs toward its overall DBE goal.

6 See Chapter 10 of this report for an in-depth discussion of these factors. 7 49 CFR 26 Subpart D provides certification requirements. There is a gross receipts limit (currently not more than a $23.98 million annual three-year average revenue, and lower limits for certain lines of business) and a personal net worth limit (currently $1.32 million excluding equity in the business and primary personal residence) that firms and firm owners must fall below to be able to be certified as a DBE. http://www.ecfr.gov/cgi-bin/text-idx?SID=5423bdfc26e2255aef5fb43e3f450a13&node=49:1.0.1.1.20.4&rgn=div6. Under 49 CFR Section 26.67(b), a certifying agency may consider other factors to determine if an individual is able to accumulate substantial wealth, in which certification is denied (annual gross income of the owner and whether the fair market value of the owner’s assets exceed $6 million are two such factors that may be considered).


The 2016 Disparity Study includes information for ODOT to consider in evaluating whether any, all, or just some of the DBE groups should be eligible for the contract goals element of the Program (if ODOT chooses to continue to use DBE contract goals).

Past court challenges to the Federal DBE Program and to state and local agency implementation of the Program. Although agencies are required to operate the Federal DBE Program in order to receive USDOT funds, different groups have challenged program operation in court.

A number of courts have held the Federal DBE Program to be constitutional, as discussed in Chapter 2 and Appendix B of this report.

State transportation departments in California, Illinois, Minnesota, Montana and Nebraska successfully defended their operation of the Federal DBE Program, as have certain local government agencies. In 2005, the Washington State Department of Transportation was not able to successfully defend its operation of the Federal DBE Program. (See Chapter 2 and Appendix B.)

The Ninth Circuit Court of Appeals examined the methodology and results of the disparity study David Keen directed for the California Department of Transportation (Caltrans) in Associated General Contractors of America, San Diego Chapter, Inc. v. California Department of Transportation. As discussed in more detail in Chapter 2 and Appendix B, the Ninth Circuit favorably reviewed the methodology and the quantitative and qualitative information provided in the disparity study and determined that the information justified Caltrans’ operation of the Federal DBE Program. Keen Independent’s methodology in ODOT’s 2016 Disparity Study is very similar to what the court favorably reviewed in the Caltrans case.

C. Oregon MWESB Program and Other Programs

ODOT participates in other programs beyond the Federal DBE Program. These include:

State MBE/WBE Policy. The State of Oregon has a policy of supporting Oregon’s minority business enterprises and woman business enterprises. Eleven Oregon state agencies including ODOT set aspirational targets for MBE/WBE procurement contracts valued at $150,000 or less that might be performed by MBEs/WBEs. In addition to aspirational targets, the State implements other initiatives to improve opportunities for certified business enterprises, address race- and gender-based discrimination and ensure state funds are used to foster an inclusive business climate.

Emerging Small Business Program. The State of Oregon and several local governments operate an Emerging Small Business Program that reserves certain contracting opportunities for ESB bidders. Under the Program, qualified small businesses compete against other small companies for identified small contracts.

Small Contracting Program. ODOT operates a Small Contracting Program that streamlines bidding or proposing on small architectural, engineering and land surveying contracts, small construction contracts and other small purchases. Any company may register to participate in the program.


Other small business support. ODOT supports small businesses through other programs such as the Oregon Small Business Initiative and the Project Specific Mentor-Protégé Program.

Chapter 11 of the report assesses opportunities to expand efforts to encourage participation of small businesses in ODOT contracts.

D. Previous Disparity Analyses Regarding ODOT Contracts

The USDOT recommends that agencies such as ODOT conduct disparity studies to develop the information needed to effectively implement the Program. ODOT completed full disparity studies in 2007 and 2011, and an availability update in 2013. MGT of American, Inc. prepared each of those studies.8

ODOT used results of the studies prepared by MGT when determining how to implement the Federal DBE Program for past years, including its request to FHWA for a “waiver” in which only certain racial, ethnic and gender groups of DBEs would participate in the DBE contract goals program.

ODOT first applied for a waiver in January 2008 based on the results of the 2007 study prepared by MGT.

It applied for a new DBE Program Waiver in 2012 for years 2013 through 2015 based on the results of the 2011 study prepared by MGT.

Under the waiver, only some DBE groups can participate in meeting a DBE contract goal ODOT sets for its FHWA-funded construction and engineering-related contracts.9

The 2016 Disparity Study examines participation of minority- and women-owned firms in ODOT contracts from October 2010 through September 2014. Keen Independent and ODOT chose this study period so that the utilization analysis would begin where the 2011 study ended (contracts awarded through September 2010). The 2016 Study also includes certain enhancements to the disparity study methodology compared to what was employed in ODOT’s previous studies, in accordance with the more recent 2013 Ninth Circuit review of Mr. Keen’s methodology for a Caltrans disparity study.

E. Analyses Performed in the 2016 Disparity Study and Location of Results

Figure 1-2 on the following page outlines the chapters in the 2016 Disparity Study.

8 http://www.oregon.gov/ODOT/CS/CIVILRIGHTS/Pages/dbe_disp_avail_stud.aspx. 9 ODOT’s waiver requests and FHWA’s past approvals can be viewed at http://www.oregon.gov/ODOT/CS/CIVILRIGHTS/Pages/dbe_prog_wav.aspx.


Figure 1-2. Chapters in 2016 Disparity Study report

Chapter Description of 2016 Disparity Study

report chapters

ES. Executive Summary Brief summary of study results

1. Introduction Study purpose, study team and overview of analyses

2. Legal Framework Summary of Federal DBE Program regulations and relevant court decisions

3. ODOT Transportation Contracts How the study team collected ODOT contract data and defined the geographic area and transportation contracting industry

4. ODOT Operation of the Federal DBE Program

Review of ODOT’s implementation of the Federal DBE Program and other programs as well as State and local agency programs and other technical assistance programs in Oregon

5. Marketplace Conditions Summary of quantitative and qualitative information about the Oregon transportation contracting marketplace

6. Availability Analysis Methodology and results regarding availability of minority- and women-owned firms and other businesses for ODOT contracts and subcontracts

7. Utilization and Disparity Analysis Comparison of utilization and availability of minority- and women-owned firms (disparity analysis)

8. Exploration of Neutral Explanations for any Disparities

Further examination of disparity results to determine if any can be explained by neutral factors

9. Overall Annual DBE Goal Information to review when setting a three-year overall DBE goal, including consideration of a “step 2 adjustment”

10. Portion of Overall DBE Goal to be Met Through Neutral Means

Information to review when determining the portion of the overall DBE goal to be met through neutral means

11. Recommendations Study team recommendations concerning future implementation of the Federal DBE Program and other ways to assist small businesses and minority- and women-owned companies

The following briefly describes where to find specific information in the 2016 Disparity Study report.

Definition of terms. Appendix A provides explanations of acronyms and definitions of key terms used in the study.

Legal framework. Chapter 2 summarizes the legal framework for the study. Appendix B presents detailed analyses of relevant cases.


Collection of prime contract and subcontract information for past USDOT- and state-funded contracts. The study team collected information about past FHWA- and state-funded contracts awarded by ODOT or by local public agencies from October 1, 2010 through September 30, 2014. Chapter 3 outlines the data collection process and describes these contract data. Appendix C provides additional documentation.

ODOT and other agencies’ programs. Background on the Federal DBE Program is provided in Chapter 4. The chapter also discusses ODOT’s implementation of the program and its race- and gender-neutral efforts for DBE participation.

Analysis of local marketplace conditions. The study team examined quantitative and qualitative information relevant to the Oregon transportation contracting industry. Chapter 5 synthesizes quantitative information about local marketplace conditions. In accordance with USDOT guidance, Keen Independent analyzed:

Any evidence of barriers for minorities and women to enter and advance in their careers in the construction and engineering industries in Oregon (detailed results in Appendix E);

Any differences in rates of business ownership in Oregon (discussed in Appendix F); Access to business credit, insurance and bonding (detailed results in Appendix G); Any differences in measures of business success and access to prime contract and

subcontract opportunities (examined in detail in Appendix H); and Certain other issues potentially affecting minorities and women in the local

marketplace.

Appendices E through I provide supporting information.

Chapter 5 also summarizes analysis of qualitative information, including results of in-depth personal interviews and focus groups with 71 business owners, trade associations and public agencies as well as comments 275 business owners and managers provided through online and telephone surveys. The study team conducted additional interviews and focus groups with staff from ODOT and local public agencies and public input as part of the public comment process held at the outset of the study. Appendix J of this report summarizes comments received and provides detailed analysis of this qualitative information.

This combined quantitative and qualitative information about the marketplace is relevant to ODOT’s development of an overall DBE goal and its projection of how much of the goal will be met through neutral means.

Availability analysis, including calculation of base figure for overall DBE goal. Keen Independent’s availability analysis generates benchmarks to use when assessing ODOT’s utilization of minority- and women-owned firms. The availability results also provide information for ODOT to consider when setting its overall annual goal for DBE participation on FHWA-funded contracts in FFY 2017 through FFY 2019.


Chapter 6, which presents these results, is organized as follows:

The methods used to collect and analyze availability of minority-, women- and majority-owned firms;

Availability benchmarks used in the disparity analysis; and Information relevant to ODOT’s “base figure” for its overall DBE goals for FHWA-

funded contracts.

MBE/WBE utilization and disparity analysis. Chapter 7 describes Keen Independent’s analysis of the utilization of minority- and women-owned businesses in ODOT’s FHWA- and state-funded contracts during the study period. The disparity analysis in Chapter 7 compares utilization to availability to determine whether there is underutilization of minority- or women-owned firms in ODOT transportation contracts. Chapter 7 provides utilization and disparity analysis results for ODOT contracts overall, and for contracts within two-year time periods.

Chapter 8 further explores this information, including utilization and disparity results for different types of ODOT contracts. It also contains analysis of DBE participation on FHWA- and state-funded contracts, and explores whether there is any evidence of overconcentration of DBEs.

Information for overall DBE goal and DBE Program operation for FHWA-funded contracts. Chapter 9 provides Keen Independent’s analysis of the overall DBE goal for FHWA-funded contracts for October 1, 2016 through September 30, 2019. This provides information to ODOT as it determines its overall DBE goal for these three federal fiscal years.

Portion of overall DBE goal to be met through neutral means. Chapter 10 details Keen Independent’s analysis of the portion of the overall DBE goal that can be met through neutral means and whether there is evidence that race- and gender-conscious programs will be needed. ODOT can review this information as it determines how it will implement the Federal DBE Program starting October 1, 2016, including which racial, ethnic and gender groups of DBEs, if any, will participate in a DBE contract goals program.

Recommendations. Keen Independent suggests refinements to ODOT implementation of the Federal DBE Program and other efforts to include small and minority- and women-owned businesses in ODOT contracts. Chapter 11 provides recommendations for ODOT consideration.

F. Public Participation in the 2016 Disparity Study

Keen Independent and ODOT implemented an extensive public participation process as part of the 2016 Disparity Study. To date, these activities include:

An External Stakeholder Group that met with the study team and ODOT at key junctures of the study process (meetings in December 2014; January, June, August and October 2015; and January and March 2016).

Information provided to interested groups through press releases, email blasts and presentations.


A study website that posted information about the 2016 Disparity Study from the outset of the study.

A telephone hotline and dedicated email address for anyone wishing to comment.

Public meetings at the start of the study to obtain input from stakeholders and other interested groups. ODOT held these meetings in Bend, Roseburg, Salem and Portland in February 2015, and included call-in opportunities for individuals unable to attend a meeting in person. As discussed under Part G below, ODOT held additional public meetings upon release of the draft report and its proposed overall DBE goal.

Opportunities for company owners and managers to provide information about their businesses and any perceived barriers in the marketplace. The study team successfully reached 7,119 businesses through online surveys and telephone surveys conducted in summer 2015.

In-depth personal interviews and focus groups with 71 business owners, managers and trade association representatives throughout the state. The study team also interviewed staff from ODOT and other public agencies in Oregon.

G. Public Comment Process for the 2016 Disparity Study Report and ODOT DBE Goal

Keen Independent published this draft Disparity Study report for public comment before finalizing the report. Public comments concerning information in this report as well as ODOT’s proposed overall DBE goal were made from mid-March 2016 through April 30, 2016. The public was able to give feedback at the meetings listed below and provide written comments (a) in person at the meetings, (b) online at www.ODOTDBEstudy.org, (c) via email at [email protected], (d) through regular mail to ODOT Office of Civil Rights, MS31, 355 Capitol Street NE, Salem OR 97301-3871.

ODOT held five public meetings concerning the study and ODOT’s proposed DBE goal:

La Grande on April 5; Bend on April 6; Medford on April 7; Portland on April 11; and Eugene on April 12.

The La Grande and Bend public meetings were also hosted live online for people who wished to participate remotely.

Keen Independent incorporated information from the public meetings and written comments into the final Disparity Study report. ODOT will also review this information as when finalizing its proposed overall DBE goal calculation for submission to FHWA prior to August 1, 2016.

http://www.odotdbestudy.org/mailto:[email protected]


CHAPTER 2. Legal Framework

The legal framework for the disparity study is based on applicable regulations for the Federal DBE Program and other sources, including the Official USDOT Guidance, court decisions related to the Federal DBE Program and relevant court decisions concerning challenges to minority- and women-owned business programs. The applicable federal regulations are located at Title 49 Code of Federal Regulations (CFR) Part 26.

Since the 1980s, there have been lawsuits challenging the constitutionality of the Federal DBE Program and individual state and local agencies’ implementation of the Program. Figure 2-1 on the following page provides an overview of some of the recent legal challenges. To summarize:

The Federal DBE Program has been upheld as valid and constitutional.

For the most part, state DOTs have been successful in defending against legal challenges. Western States Paving Company, however, was successful in challenging the Washington State Department of Transportation’s implementation of the Federal DBE Program.

Many state and local agencies, especially those in the West (i.e., states within the Ninth Circuit), made adjustments in their implementation of the Federal DBE Program to comply with the United States Ninth Circuit Court of Appeals decision in the Western States Paving case, and in accordance with the Official USDOT Guidance issued after the decision.

The Ninth Circuit Court of Appeals held California Department of Transportation’s implementation of the Federal DBE Program was valid and complied with the decision in Western States Paving.

Each of the lawsuits identified in Figure 2-1 pertains to state DOT implementation of the Federal DBE Program for USDOT-funded contracts. Appendix B discusses court decisions regarding local and state government implementation of the Federal DBE Program.

Individual companies and trade associations have also challenged the constitutionality of state or local government MBE/WBE programs related to non-federally-funded contracts (including state programs

oregon department of transportation 2016 availability and disparity … · 2020-01-23 · 2016,odot...

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