Chapter 8: Good Faith Efforts
Anchor: #i1000070Section 1: Overview
Anchor: #i1000075Utilization Plan
Prime contractors are required to submit DBE Utilization Plans (UP) through DMS no later than five calendar days following the official notification that they are the apparent low bidder. If the fifth day falls on a weekend or state or federal holiday, the deadline moves to the next business day.
Prime contractors complete and submit utilization plans online via DMS.
TxDOT creates the UP record in DMS by project CSJ and assigns it to a prime contractor. Once TxDOT releases the UP, the prime contractor’s main contact in DMS will receive an e-mail notification.
The prime contractor can then enter all subcontractors or suppliers. The subcontractors and suppliers must confirm their participation. The prime contractor will sign the UP and submit it.
Submitted plans are reviewed by TxDOT CIV staff. CIV staff will either: a) return the plan, b) conditionally approve the plan, c) approve the plan, or d) deny the plan. For returned and conditionally approved plans, the system will automatically send notices to the prime contractor to update and resubmit the plan.
Instructions for submitting a UP in DMS are included in Section 2. In addition, B2Gnow has published a user manual titled Utilization Plans that shows prime contractors how to complete and submit utilization plans. The manual can be located in DMS.
A DBE prime contractor is not required to submit a UP. DBE prime contractors must report subcontractor activity for all subcontractors to include DBEs and non-DBEs in DMS after contract execution. Refer to Chapter 9 titled DMS Subcontractors for more information on adding subcontractors to DMS.
Anchor: #i1000115Good Faith Efforts
Prime contractors must make Good Faith Efforts (GFE) to meet the DBE contract goal, either by meeting the goal or by documenting GFE to meet the goal. Prime contractors should make sincere and aggressive efforts to meet the DBE goal. Attempting to obtain a contract on the basis of documented GFE should be a contractor’s last resort.
Contractors should document steps it has taken to satisfy GFE requirements and meet the contract DBE goal. Prime contractors should understand the list of the types of GFE found in 49 CFR, Part 26, Appendix A.
TxDOT will not penalize prime contractors if they fail to meet contract DBE goals as long as they follow GFE guidelines in 49 CFR, Part 26, Appendix A and submit their GFE to CIV for review and approval.
If the goal cannot be met in whole or in part, prime contractor will attach Contractors Certification of Good Faith Efforts Form 2603 and supporting documentation in DMS.
Anchor: #i1000144Administrative Reconsideration
If TxDOT determines that the apparent successful bidder has failed to meet the requirements of 49 CFR Part 26.53(a), TxDOT, before awarding the contract, will provide the bidder an opportunity for administrative reconsideration. As part of this reconsideration, the bidder will have the opportunity to provide written documentation or argument concerning the issue of whether it met the goal or made adequate good faith efforts to do so.
TxDOT’s decision on reconsideration will be made by an official who did not take part in the original determination that the bidder failed to meet the goal or make adequate good faith efforts to do so.
The bidder will have the opportunity to meet in person with TxDOT’s reconsideration official to discuss the issue of whether it met the goal or made adequate good faith efforts to do so.
TxDOT will send the bidder a written decision on reconsideration, explaining the basis for finding that the bidder did or did not meet the goal or make adequate good faith efforts to do so. The result of the reconsideration process is not administratively appealable to the DOT.