Important Changes to ODOT's DBE Program — Effective March 1, 2010
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By John Hickey and Katie Jeremiah
Spring 2010

Changes to Oregon Department of Transportation's (ODOT) Disadvantaged Business Enterprise (DBE) program now prohibits prime contractors from counting work outside of a DBE's NAICS (North American Industry Classification System) codes toward the DBE participation requirements for hard goals. The changes went into effect on March 1, 2010. Before March 1, a prime contractor could use all work performed by a DBE toward meeting any hard goals for DBE participation, regardless of whether any of the work was within the DBE's NAICS codes.

Prime contractors must now include the NAICS codes under the "Description of Work" column on the DBE Commitment Certification and Utilization Form that is submitted with bids if the contractor plans to use listed DBEs to meet a hard DBE goal. ODOT will probably reject the bids of prime contractors who fail to properly match the NAICS code to the work that they intend to count toward any hard goal. Even if ODOT misses a prime contractor's mistake in listing the NAICS codes for a DBE subcontractor, it is very likely that other bidders will file protests against the bid.

The NAICS codes for each DBE contractor can be verified on the Office of Minority, Women and Emerging Small Business (OMWESB) website.

Recent notices from ODOT may have caused DBEs to think they must recertify under their previously certified NAICS codes. While recertification is not necessary, DBE subcontractors should verify that they are certified under every NAICS code they are qualified to work under. Business Oregon's OMWESB handles DBE certifications. Any DBE who wants to be certified under additional codes should contact that office at: (503) 986-0075.