On the eve of the holiday season, the Washington State Department of Transportation (“WSDOT”) published its intent to submit a proposal to the United States Department of Transportation (“USDOT”) with two striking and drastic changes to the Disadvantaged Business Enterprise (“DBE”) Program in Washington. These changes will have a radical effect on non-minority women-owned DBEs. Women-Owned Businesses (“WBEs”) should take swift action to halt WSDOT’s proposed changes, which will have lasting detrimental impacts on small businesses in Washington and the construction industry as a whole.
WSDOT proposes to decrease its overall DBE participation goal from 15.17% to 11.6% and, most strikingly, to seek a waiver from the Federal Government to exclude all WBEs from its DBE goal for Fiscal Year 2014 and thereafter. WBEs will be excluded from the DBE goal for federally-funded construction, design, and consulting contracts, plus services bids.
WSDOT’s purported proposal is an extreme and unnecessary measure. It is based upon flawed data and analysis that incorrectly concludes that WBEs do not face “substantial disparities” in federally-funded transportation contracts.
This action is also in violation of specific provisions of the governing rules (Code of Federal Regulations, Title 49, Part 26) and federal Ninth Circuit Court of Appeals precedent (see W. States Paving Co., Inc. v. Washington State Dep’t of Transp., 407 F.3d 983, 990 (9th Cir. 2005)). In addition to causing substantial detrimental impacts to WBEs and the general contractors that hire them, in enacting these changes WSDOT will be exposing itself—and Washington taxpayers— to the serious threat of costly litigation.
As required by the governing rules, WSDOT is conducting a series of public meetings and accepting public comment to its proposed changes. The list of meetings is below. We encourage all interested parties to attend the meetings and provide comment on WSDOT’s plan to exclude WBEs from WSDOT’s DBE program goals and—most importantly—its incorrect conclusion that WBEs do not face substantial disparities in the marketplace.
For more details why we believe WSDOT’s proposal to be a flawed and drastic action that will negatively impact non-minority women-owned companies and the construction industry as a whole, see our letter dated January 9, 2014 to WSDOT, attached here, strongly urging WSDOT to reconsider its proposed changes.
WSDOT will hold meetings at 5:30 p.m. at the following locations:
Thursday, January 9th: WSDOT NW Region Headquarters Cafeteria Conference Room 15700 Dayton Ave. N. Seattle, WA 98133 Monday, January 13th: William Factory Small Business Incubator 1423 E. 29th Street Tacoma, WA 98404WSDOT is also holding a webinar at 10:00 a.m. on Thursday, January 16th for individuals who are unable to attend a meeting. Those interested in participating can register for this webinar by emailing: DBEss@wsdot.wa.gov with the subject line “DBE webinar.”
Comments to the overall DBE goal and waiver may also be submitted via email to disparitystudy@wsdot.wa.gov or mailed to:
Office of Equal Opportunity Washington State Department of Transportation P.O. Box 47314 Olympia, WA 98504-7314All comments must be received by 5:00 p.m. on February 3, 2014 to be included in WSDOT’s overall DBE goal submission to USDOT.
Representatives from Ahlers & Cressman PLLC will be attending WSDOT’s public meeting on Thursday, January 9 and have submitted the attached letter in opposition to WSDOT’s proposal. For more information, email Ellie Perka at eperka@ac-lawyers.com or Lindsay Taft at ltaft@ac-lawyers.com.