AFH 80

Mid-Year Meeting Minutes

July 20, 2016 (2:00 p.m. to 4:00 p.m. Eastern Time)

  1. Attendance – see attached sheet reflecting those who participated in the telephonic session.
  2. Agenda (attached).
  3. General Items for the Record:
  • Streamlined name of this Committee: The Disadvantaged Business Enterprise Committee.
  • New Chair: Joanne Lichtenstein Lubart, Senior Counsel, with the Pennsylvania Department of Transportation, Office of Chief Counsel, new Chair of the Committee, made brief opening remarks. She emphasized the ability to build upon past successes through participatory discussion, teamwork, and collegiality.
  • New TRB Liaison: Dr. Nelson Gibson, Senior Program Officer, TRB, introduced himself and indicated that he will serve as the Committee’s new liaison to the Construction Section of TRB’s organizational structure. Dr. Gibson also expressed his intention to serve as a conduit between the Committee and AAHSTO. Does AFH80 ordinarily communicate research needs through AASHTO Subcommittee on Civil Rights or AASHTO Subcommittee on Construction or both?.Not to my knowledge.
  • Committee Website: Mike Behney, Director of the Pennsylvania State Data Center, explained how to navigate the Committee’s website which can be accessed at: Dr. Gibson indicated that this website constitutes the best place to store all communications and practices of the Committee.
  • CommitteeMembers Roster– for simplicity, can link to the TRB roster since it is frequently updated and maintained:
  • A Friends list was discussed to potentially be posted. TRB does not post friends lists. This was looked into afterwards. These lists are maintained by the chair and the majority of committees do not post Friends lists on website.
  • Research Needs Statements: Active research is encouraged by TRB and the Committee is tasked with discussing and creating research needs statements.The current Research Needs Statements maintained by AFH80 can be found on the TRB Research Needs Statement Website browsing by committee revealed one
  • Evaluating the Efficacy of Unified Certification Programs: Are these Programs Fulfilling the Regulatory Mandate for "One Stop Shopping?(2008)
  1. Triennial Strategic Plan (2017-2020): Dr. Gibson addressed the next triennial strategic plan (TSP) for 2017 to 2020. He indicated that he and the Chair will assemble a small group to discuss revisions to be made to the last plan. The new one will build upon the current document.
  2. Purpose: To delineate the Committee’s core mission; focal points; and means and measures for accomplishing goals and objectives.
  3. Tools: Angela Christian will be assist the Committee with this endeavor by preparing three attachments that will help the scriveners to write the plan. Dr. Gibson indicated that this will reduce some of the burdens traditionally imposed on the Committee.
  4. Timeframe: Dr. Gibson indicated that the Committee will begin working on the TSPin December and continue this effort until the due date of April 1, 2017.
  5. Brooks Act Discussion led by Mr. Paul Curtis: Paul Curtis led a discussion about the impact of the federal Brooks Act on DBEs. This Act requires the federal government to select engineering and architectural firms based upon qualifications and experience rather than price or low bid. The state and local governments, as grantees of the federal government adhere to this via what is referred to as “baby brooks acts.” Mr. Curtis, the owner of a certified DBE firm, asserted the following to the Committee:
  6. This Act has been in place for a long time (since 1972) and it does not necessarily work toward the best interest of the DBE community.
  7. He opined that it is applied differently across the nation even though it involves a federal process.
  8. He expressed the desire to collect data from Committee friends and members to support potential reform and to prepare a synthesis statement to be submitted to TRB.
  9. Other attendees confirmed that the Brooks Act is an important topic and merits the contemplated research.
  10. Might be a good topic for a webinar.
  11. Dr. Samuel Myers urged Mr. Curtis to look at the differences in state laws with respect to the consultant selection process as well as procurement practices related to the post selection process.
  12. Martha Kenley indicated that a model procurement policy might be developed. She also confirmed the misperception that the Brooks Act prevents state departments of transportation (state dots) from establishing goals on professional services contracts. Martha stated that there are ways to make the DBE goal process conform to the Brooks Act requirements. She also opined that this topic could be considered for an NCHRP synthesis.
  13. Dr. Gibson suggested that several individuals could consider working with Mr. Curtis in further developing the topic and using elements of the Research Needs Statement template (to be provided) can be helpful before taking this to the NCHRP as a Synthesis recommendation
  14. Background/Description –why is the issue a serious one and does it merit funding. Set the context and relate the particular issue to larger national or regional goals and objectives
  15. Objective - Short, concise, and accurate description of what the expected product of this research will be
  16. Martha Kenley also noted that some states attempt to alleviate the problems in this area by including proactive measures in their Small Business Element, a required component of a DBE program plan (e.g. relaxing prequalification requirements which can be onerous for small firms).
  17. Keith Wiener stated that another option is to gather additional research or develop a model procurement policy through the American Bar Association’s State and Local Government Division.
  18. Mr. Curtis committed to prepare a synopsis of the issues within thirty days and submit it to the Committee for feedback.
  1. Legal Challenges and Legislative Update: Keith Wiener provided an update on the most significant DBE lawsuits pending across the nation. Full citations to cases will be provided on the Committee website.
  2. Dunnet Bay: appealed to the United States Supreme Court. The Seventh Circuit affirmed the federal district court decision upholding the validity of the DBE program of the Illinois Department of Transportation. The Seventh Circuit held that all that is required for a state dot implementing the federal program is that its application not exceed the authority of the federal regulations. This case was appealed on certiorari and all briefs have been distributed for conference by the Supreme Court on September 26, 2016.
  3. Midwest Fence: Case involving the Illinois Department of Transportation and the Illinois State Toll Highway Authority. Pending in the Seventh Circuit. May be decided by the end of the calendar year.
  4. Mountain West: Case involving the Montana Department of Transportation. The federal district court upheld the validity of the State of Montana’s implementation of the federal program.
  5. Fairness to Veterans Investment Act: This Act was passed by the United States House of Representatives and is pending before the Senate. It would add veterans to small business concern definition in the federal DBE regulation.
  6. HR 3997: This was introduced in the House and is currently before a committee. It calls for a standalone separate veteran-owned business enterprise program.
  7. Annual Meeting Workshops: Discussion led by co-event planners, Michelle Flamer and Ruth Byrd-Smith. There will be two workshops next January. Each one will last 105 minutes. Working titles and list of participants are due by September 15th. Michelle and Ruth will be reaching out to others to narrow down to two. Topics discussed included:
  8. Certification and Substantial Wealth
  9. Co-sponsoring a workshop with another TRB Committee to garner more attention and traction: One possibility is to partner with the Project Delivery Committee – AFH15. Look at alternative construction, alternative concepts. Engage those involved in more technical aspects of construction.
  10. Presentation on a handbook being prepared by FHWA that will focus on best practices relative to design-build and other alternative delivery methods. The handbook is expected to be completed by December.
  11. North American Industry Classification System (NAICS) codes: This topic is universal.
  12. Sustainability: Look at firms that are not now eligible for DBE certification for size reasons, but still suffer from barriers relative to larger firms.


Meeting Participants

  • Dr. Nelson Gibson (Senior Program Officer, Transportation Research Board)
  • Angela Christian (Program Coordinator, Transportation Research Board)
  • Joanne Lubart (Senior Counsel, Pennsylvania Department of Transportation, Office of Chief Counsel/Chair)
  • Michael Behney(Director, Pennsylvania Data Center)
  • Sherri Zimmerman (Assistant Professor, Indiana University of Pennsylvania)
  • Dr. Samuel Myers (University of Minnesota)
  • Ramon Cabellos (DelDOT)
  • Mike Self (Director, EEO Networking Solutions)
  • Dana Goodrum (Policy and Supportive Services unit Manager, Illinois Department of Transportation)
  • Martha Kenley (FHWA DBE Program Manager)
  • Bob Ashby (DBE consultant)
  • Michelle Carter (DBE Program Chief, Wisconsin Department of Transportation)
  • Suzanne Whisenant Pritchett (Alabama Contractors Association)
  • Marc Pentino (Office of the Secretary, United States Department

of Transportation)

  • David Keen (Keen Independent Research, LLC)
  • Emanuel Banks (Disadvantaged Business Enterprise Liaison Office – Arkansas State Highway and Transportation Department)
  • Michelle Tesero (EO Specialist – Departmental Office of Civil Rights, United States Department of Transportation)
  • LakwameAnyane- Yeboa (EO Specialist – Departmental Office of Civil Rights, United States Department of Transportation)
  • Rachyl Smith (Civil Rights Program Manager, Federal Highway Administration)
  • Eric Ross – Federal Highway Administration
  • Shay Ponquinette (Virginia Department of Transportation)
  • Paul Curtis (Curtoom Companies, Incorporated)
  • Vivien Lattibeaudiere, Manager (Business Engagement and Compliance, Arizona Department of Transportation)
  • Ruth Byrd-Smith (Director, Allegheny County Office of Minority/Women and Disadvantaged Business Enterprises)
  • Michelle Flamer (Senior Attorney, City of Philadelphia Law Department)
  • Keith Wiener (Holland and Knight, LLP)
  • Dr. Charles Wright (Consultant)